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NEWSPAPER  LIBEL 


A  HANDBOOK  FOR  THE  PRESS 


BY 

SAMUEL    MERRILL 

OF   THE    BOSTON    DAILY   GLOBE 
A    MEMBER    OF    THE    BAR    OF    MASSACHUSETTS    AND    OF    NEW    YORK 


The  liberty  of  the  Press  consists  in  printing  without  any  pre- 
vious license,  subject  to  the  consequences  of  law.  The  licentious- 
ness of  the  Press  is  Pandora's  box,  the  source  of  every  evil. 

Lord  Man  =  kield. 


BOSTON 

TICKNOR    AND     COMPANY 

211  Crnnont  Street 

1888 


Copyright,  1888, 

By  Samuel  Merrill. 


All  rights  reserved. 


Press  0/ 
Alfred  Mudge  &  Son,  Boston.  U.  S.  a. 


PREFACE 


No  apology  seems  to  be  needed  for  the  publication 
of  this  work.  The  lack  of  any  treatise  devoted  exclu- 
sively to  the  law  of  libel  ;  the  need  of  such  a  work 
compendious  enough  to  serve  as  a  book  of  convenient 
reference  in  newspaper  offices ;  the  demand,  indeed, 
for  more  information  generally,  outside  the  legal  pro- 
fession, regarding  the  rights  of  the  press  and  its  obliga- 
tions toward  public  men  and  others  whose  conduct  and 
whose  affairs  become  subjects  of  discussion  as  news,  — 
these  facts  are  sufficiently  manifest  to  make  this  book 
its  own  best  excuse  for  existence. 

The  text-books  on  the  joint  subject  of  slander  and 
libel,  designed  for  the  use  of  the  bar,  while  admirable, 
most  of  them,  in  their  field,  are  far  too  voluminous  to 
be  often  consulted  by  any  save  those  for  whom  they 
were  more  especially  prepared.  In  the  present  work, 
questions  of  pleading  and  practice  are  not  considered, 
and,  as  a  general  rule,  the  cases  cited  are  cases  of  news- 
paper libel  heard  in  American  courts.  Where  English 
cases  are  cited,  they  are,  in  every  instance,  believed  to 
be  of  equal  authority  in  this  country.  Some  seeming 
and  some  actual  conflicts  will  be  found  between  the 
decisions  of  different  courts,  but  this  is  an  inherent 
difficulty  of  the  subject,  and  an  effort  has  been  made 
to  reduce  the  difficulty  to  a  minimum. 


922298 


4  PREFACE. 

References  to  the  law  text-books   are  made  to  the 
latest  editions.     The  editions  of  the  works  on  slander 
and   libel   are    as    follows :    Townshend,    third   edition 
(New  York,    1877);    Odgers,    American   edition   (Bos- 
ton, 1881);  Starkie  (Folkard's),  American  edition  (New 
York,   1877).     Where    reference  is  made    to  works  in 
which  two  systems  of  paging  are  followed,  the  citations 
correspond  with  the  original  or  marginal  paging.     For 
the  sake  of  uniformity,  cases  are  in  every  instance  cited 
with  the  name  of  the  original  plaintiff   preceding  the 
name  of  the  individual  or  company  charged  with  the 
libel.1     In  the  citation  of  cases,  a  date  following  the 
name  of  a  newspaper  is  the  date  when  the  alleged  libel 
was  published  ;  a  date  following  the  name  of  the  law 
report  indicates  when  the  case  was  decided  in  court. 
Cases  are  generally  indexed  by  the  names  of  the  news- 
papers, but  the  names  of  the  cities  or  towns  where  they 
are  published,  and  the  words  "daily,"  "morning,"  etc., 
are    not  for  this   purpose  considered    as  parts  of  the 
names  of  the  papers. 

It  has  been  said  that  every  lawyer  owes  it  as  a  debt 
to  his  profession  to  add  something  to  the  literature  of 
the  law.  The  author,  while  disclaiming  any  intention 
of  writing  a  text-book  for  the  use  of  the  bar,  ventures 
to  hope  that  his  work  may  prove  of  sufficient  interest 
to  his  legal  friends  to  exonerate  him  from  his  obligation 
to  a  profession  of  which  he  is  no  longer  an  active 
member. 

1  The  Canada  Law  Journal  (Toronto,  Feb.  i,  1888),  quoting  the  American 
Law  Review  and  the  Central  Law  Journal,  condemns  the  practice  followed 
in  some  of  the  States  where  in  the  reports  they  "  reverse  the  names  of  the  par- 
ties as  they  appear  in  the  court  below,  and  put  the  party  appealing  or  prosecuting 
the  writ  of  error  as  the  plaintiff,  although  he  may  have  stood  in  the  court  below 
as  the  defendant." 


PREFACE.  5 

If  the  reader  of  this  book  is  already  a  defendant  in 
libel  proceedings,  it  is  to  be  hoped  that  in  the  following 
pages  he  can  find  a  happy  issue  out  of  all  his  troubles ; 
but,  if  such  is  the  case,  the  work  will  perform  a  more 
important  service  than  the  author  can  confidently  ex- 
pect for  it.  If,  however,  whether  he  is  a  publisher  or  a 
writer  for  the  press,  he  is  as  yet  exempt  from  such 
difficulties,  it  seems  not  too  much  to  believe  that  a  care- 
ful study  of  these  pages  will  enable  him  to  remain  free 
and  clear  from  entanglement  in  the  mysterious  meshes 
of  the  law.  In  any  event,  the  reader,  whose  legal 
rights  and  obligations  are  herein  defined,  should  re- 
member that  "  ignorance  of  the  law  is  no  excuse." 

Boston,  July  i,  1888. 


CONTENTS 


Chapter  Page 

I.     Introductory 9 

II.     The  Civil  Action  of  Libel 38 

III.  Criminal  Libel 62 

IV.  Libels  as  Contempts  of  Court    ....  99 
V.    Publication 130 

VI.     Language  which  is  Libellous      .     .     .     .  14S 

VII.     Privileged  Publications 180 

VIII.    Political  Libels 208 

IX.     Defences 229 

X.     Damages 250 

Index 279 


NEWSPAPER     LIBEL. 


CHAPTER    I. 

INTRODUCTORY. 

The  first  newspaper  published  in  America  was  called 
Publick  Occurrences*  and  it  bore  the  date  September  25, 
1690.  Its  editor  was  Benjamin  Harris,  whose  office  was 
at  the  London  Coffee  House,  Boston.  Fifty-one  years 
earlier  the  pioneer  printing  press  was  brought  into  the 
Colony  from  England,  but  the  government  so  restricted 
the  practice  of  printing  that  it  is  only  strange  that  even 
at  the  expiration  of  a  half-century  any  colonist  should 
dare  to  employ  the  crude  machinery  of  one  of  the 
early  presses  in  the  field  of  journalism.  In  1662  the 
General  Court  of  Massachusetts  Bay  had  appointed  two 
-persons  "  licensers  of  the  press  ";  and  that  their  office 
was  no  sinecure  is  shown  by  the  fact  that  in  1668, 
having  allowed  Thomas  a  Kempis'  "  De  Imitatione 
Christi  "  to  be  printed,  they  were  cautioned  to  make  a 
more  careful  revision,  and  meantime  the  press  was 
ordered  stopped.  Even  the  laws  for  a  long  time  were 
not  allowed  to  be  printed,  and  the  burning  of  offending 
books  by  the  common  hangman  was  a  frequent  occur- 
rence. 

This  first  American  newspaper  was  a  little  sheet  of 
three  printed  pages,  each  page  containing  two  columns. 


io  NEWSPAPER   LIBEL. 

Mr.    Harris,   the  sole  publisher,   editor,    and  reporter, 
thus  announced  his  intentions  in  his  prospectus  :  — 

It  is  designed  that  the  Count?  ey  shall  be  furnished  once  a 
moneth  {or  if  any  Glut  ^Occurrences  happen  oftener)  with 
an  Account  of  such  considerable  things  as  have  arrived  unto 
our  Notice. 

In  order  here  unto,  the  Publisher  will  take  what  pains  he 
can  to  obtain  a  Faithful  Relation  of  all  such  things;  and 
will  particularly  make  himself  beholden  io  such  Persons  in 
Boston  whom  he  knows  to  have  been  for  their  own  use  the 
diligent  Observers  of  such  matters. 

In  spite  of  the  editor's  declared  intentions,  Publick 
Occurrences  did  not  continue  to  appear  "  once  a  moneth." 
Its  publication  was  declared  contrary  to  law  by  the 
Legislature,  and  the  attention  of  the  licensers  of  the 
press  was  called  to  it.  The  issue  for  September  25  was 
marked  "Numb.  1,"  but  "Numb.  2"  never  appeared, 
and  thus  was  the  infant  newspaper  strangled  in  its 
cradle.  It  was  nearly  fourteen  years  before  the  next 
newspaper  was  started  in  America. 

The  advent  of  Publick  Occurrences  was  anticipated  in 
the  Colony  of  Massachusetts  Bay  not  only  by  the  ap- 
pointment of  licensers  of  the  press,  but  by  a  statute  on 
the  subject  of  libel,  enacted  May  14,  1645,  only  seven- 
teen years  after  the  founding  of  the  Colony.1 

1  Since  the  Book  of  Exodus  was  written,  libels  have  been  the  subject  of  legis- 
lation. "  Thou  shalt  not  raise  a  false  report."  (Exodus  xxiii.  i.)  By  the 
Laws  of  the  Twelve  Tables  at  Rome,  libels  affecting  the  reputation  of  another 
were  made  a  capital  offence,  and  under  the  Emperor  Valentinian  it  was 
a  capital  offence  to  neglect  to  destroy  a  libel  which  another  had  written. 
(Blackstonc's  Commentaries,  book  IV.,  chap,  n.)  Formerly,  in  England,  a 
person  guilty  of  composing  a  libel  was  deprived  of  the  privilege  of  making  a  will 
(Redfield  on  Wills,  vol.  I.,  p.  11S),  and  by  the  civil  law  in  France  the  author  or 
publisher  of  a  libel  was  included  among  those  declared  unworthy  of  enjoying  the 
right  of  inheritance  from  the  person  libelled.  (Domat's  Civil  Law,  Second  Part, 
"  des  Successions,"  book  I.,  title  i.,  sect,  iii.,  8.) 


INTRODUCTORY.  1 1 

This  statute,  which  was  broad  enough  to  cover  both 
the  subjects  of  libel  and  slander,  appears  upon  the 
record  in  the  following  terms :  — 

It  is  therefore  ordered,  y'  every  p. son  of  ye  age  of  discre- 
tion, wch  is  accounted  14  yeares,  who  shall,  wittingly  & 
willingly,  make  or  publish  any  lye  wch  may  be  p.nicious  to 
ye  publicke  weale,  or  tending  to  ye  damage  or  iniury  of  any 
p.ticulr  p. son,  or  wth  intent  to  deceive  &  abuse  ye  people  by 
false  newes  or  reports,  &  ye  same,  duely  p.ved  in  any  Cort,  or 
before  any  one  matrate,  (who  hath  hereby  powr  granted  to 
heare  &  determine  all  offences  against  ys  lawe,)  such  p. son 
shalbe  punished  after ys  manner:  For  ye first  offence  10s,  or, 
if  ye  p.ty  be  unable  to  pay  ye  same,  then  to  sit  so  long  in  ye 
stocks  as  ye  said  Cort  or  magistrate  shall  appoint,  not  ex- 
ceeding two  houres  ;  for  ye  second  offence,  whereof  any 
shalbe  legally  convicted,  ye  sume  of  20%  or,  if  ye  p.ty  be 
unable  to  pay,  yn  to  be  whiped  upon  ye  naked  body  not 
exceed^  ten  stripes. 

Governor  Berkeley,  of  Virginia,  expressed  thankfulness 
in  1 67 1,  that  neither  free  schools  nor  printing  had  been 
introduced  into  that  Colony,  trusting  that  these 
"  breeders  of  disobedience,  heresy,  and  sects  "  would 
long  be  unknown  ;  and  as  late  as  1683,  Governor  Don- 
gan  was  sent  to  his  post  at  the  head  of  the  government 
of  New  York,  with  especial  instructions  not  to  permit 
the  practice  of  printing  within  his  jurisdiction.  Nine 
years  later,  however,  a  press  was  brought  into  the  New 
York  Colony  by  a  printer  from  Philadelphia,  who  was 
driven  from  the  City  of  Brotherly  Love  for  printing  an 
address  for  a  Quaker,  in  which  the  latter  charged  the 
Quakers  who  were  holding  office  with  inconsistency  in 
exercising  political  authority,  while  professing  the  prin- 
ciples of  the  Friends.1 

1  Cooley  on  Constitutional  Limitations,  p.  419. 


I2  NEWSPAPER   LIBEL. 

The  censorship  of  the  press,  a  relic  of  the  inquisi- 
tion, was  established  in  England  in  1559  by  Queen 
Elizabeth.  Prior  to  that  time,  and  for  a  long  time  sub- 
sequently, the  government  maintained  a  monopoly  of 
the  art  of  printing,  granting  the  privilege  of  a  limited 
number  of  presses  to  members  of  the  stationers'  guild, 
and  one  press  to  each  of  the  universities.  When  it 
became  impossible  to  restrict  longer  the  number  of 
printing  presses,  the  censorship  became  more  rigid. 
The  penalty  for  publishing  a  book  without  the  royal 
license  was  a  fine  and  the  confiscation  of  the  press  and 
all  copies  of  the  unlicensed  book,  and  the  printer  was 
forever  disabled  from  following  his  trade.  Newspapers 
were  regarded  with  especial  jealousy,  and  under  the  last 
two  monarchs  of  the  House  of  Stuart  only  one  paper, 
a  small  semi-weekly,  called  the  London  Gazette,  was 
permitted  to  publish  political  news.  Even  the  size  of 
newspapers  was  regulated  by  statute,  and  this  law 
remained  in  force  in  England  till  1826. l  The  freedom 
of  the  press  was  of  later  date  than  ever}'  other  great 
concession  wrung  from  the  British  government,  for  it 
was  not  until  1694  that  Parliament  refused  longer  to 
continue  the  press  censorship  in  England,  and  thereby 
established  the  right  of  every  man  to  print  and  publish 
what  he  pleases,  under  no  responsibility,  save  for  the 
abuse  of  that  right.  The  "  imprimatur,"  or  certificate 
that  the  work  had  been  approved  by  the  licensers  of 
the  press,  is,  however,  known  to  have  been  affixed  to 
books  printed  in  the  Province  of  Massachusetts  Bay 
as  late  as  17 19,  and  the  licensers  on  this  side  of  the 
Atlantic  only  gradually  ceased  to  exercise  their  func- 
tions.2    During  the  last  decades  prior  to  the  Revolu- 

1  Odgers  on  Libel  and  Slander,  pp.  10-12. 

2  Thomas'  History  of  Printing  in  America,  vol.  I.,  pp.  207,  208. 


INTRODUCTORY. 


l3 


tion,  indeed,  the  press  was  in  many  respects  under 
greater  restrictions  in  the  Colonies  than  in  the  mother 
country,  the  home  government  fearing  to  trust  the 
king's  subjects  across  the  water  with  the  free  use  of 
such  dangerous  implements  as  presses  and  type. 

The  freedom  of  the  press  was  asserted  in  the  first 
amendment  of  the  Constitution  of  the  United  States, 
and  the  same  declaration  is  contained  in  the  constitu- 
tion of  each  of  the  several  States.1 

An  instance  of  the  arbitrary  interference  of  the  gov- 
ernment in  the  publication  of  newspapers  is  given  by 
Benjamin  Franklin  in  his  autobiography.  The  occur- 
rence took  place  in  1722,  when  Franklin  was  sixteen 
years  old,  an  apprentice  to  his  brother  James,  publisher 
of  the  New  England  Courant.     Says  Franklin  :  — 

One  of  the  pieces  in  our  newspaper  on  some  political 
point,  which  I  have  now  forgotten,  gave  offence  to  the 
Assembly.  He  [James  Franklin]  was  taken  up,  censured, 
and  imprisoned  for  a  month  by  the  Speaker's  warrant,  I  sup- 
pose because  he  would  not  discover  the  author.  I  too  was 
taken  up  and  examined  before  the  Council ;  but,  though  I 
did  not  give  them  any  satisfaction,  they  contented  them- 
selves with  admonishing  me,  and  dismissed  me,  considering 
me  perhaps  as  an  apprentice,  who  was  bound  to  keep  his 
master's  secrets.  During  my  brother's  confinement,  which 
I  resented  a  good  deal,  notwithstanding  our  private  differ- 
ences, I    had  the  management  of  the  paper ;  and    I    made 

1  "Give  me  but  the  liberty  of  the  press,"  said  Sheridan,  "and  I  will  give 
to  the  Minister  a  venal  House  of  Peers,  I  will  give  him  a  corrupt  and  servile 
House  of  Commons,  I  will  give  him  the  full  sway  of  the  patronage  of  office,  I 
v.  ill  y;ive  him  the  whole  host  of  ministerial  influence,  I  will  give  him  all  the  power 
that  place  can  confer  upon  him  to  purchase  up  submission  and  overawe  resistance, 
and  yet,  armed  with  the  liberty  of  the  press,  I  will  go  forth  to  meet  him  undis- 
mayed ;  I  will  attack  the  mighty  fabric  he  has  reared  with  that  mightier  engine ; 
I  will  shake  down  from  its  height  corruption  and  bury  it  amid  the  ruins  it  was 
meant  to  shelter."  —  New  York  Sun,  Feb.  12,  1888. 
2 


14 


NEWSPAPER   LIBEL. 


bold  to  give  our  rulers  some  rubs  in  it,  which  my  brother 
took  very  kindly,  while  others  began  to  consider  me  in  an 
unfavorable  light,  as  a  youth  that  had  a  turn  for  libelling 
and  satire.  My  brother's  discharge  was  accompanied  with 
an  order,  and  a  very  odd  one,  that  "James  Franklin  should 
no  longer  print  the  newspaper  called  The  New  England 
Courant" 

This  order  directed  that  James  Franklin  be  forbidden 
"  to  Print  or  Publish  the  New  England  Courant,  or 
any  Pamphlet  or  Paper  of  the  like  Nature,  except  it  be 
first  supervised  by  the  Secretary  of  this  Province." 
But  Franklin  issued  the  Courant  on  the  following  Mon- 
day, and  without  the  secretary's  imprimatur.  This 
offence  was  brought  to  the  attention  of  the  grand  jury, 
but  that  body  returned  no  bill.  James  Franklin  was 
then  put  under  bonds  for  his  good  behavior  for  twelve 
months.  Thereafter  the  publication  of  the  paper  was 
continued  in  the  name  of  Benjamin  Franklin.1 

The  charge  against  James  Franklin  was  the  publi- 
cation of  certain  articles  "  boldly  reflecting  on  his 
Majesty's  government  and  on  the  administration  in 
this  Province,  the  ministry,  churches,  and  college ;  and 
that  tend  to  fill  the  readers'  minds  with  vanity,  to  the 
dishonor  of  God  and  the  disservice  of  good  men." 
The  articles  were  not  set  out  at  length  or  more  defi- 
nitely specified.  Jared  Sparks  says  of  this  case  : 
"  This  was  probably  the  first  transaction,  in  the  Amer- 
ican Colonies,  relating  to  the  freedom  of  the  press  ;  and 
it  is  not  less  remarkable  for  the  assumption  of  power  on 
the  part  of  the  Legislature,  than  for  their  disregard  of  the 
first  principles  and  established  forms  of  law."2     Epes 

1  Thomas'  History  of  Printing  in  America,  vol.  I.,  p.  310;  Adams'  Typo- 
graphia,  p.  29. 

-  Autobiography  of  Benjamin  Franklin,  edited  by  Jared  Sparks,  p.  19. 


INTRODUCTORY. 


T5 


Sargent,  too,  says  that  the  prohibition  placed  upon 
James  Franklin  was  "an  unwarrantable  and  despotic 
act;  there  being  nothing  libellous,  or  even  reasonably 
offensive,  in  any  of  the  articles  the  publication  of  which 
in  the  Coitrant  was  thus  resented."  l 

The  first  case  of  newspaper  libel  adjudicated  in  an 
American  court  was  that  of  the  King  v.  Zenger,  tried 
in  New  York,  August  4,  1735-  John  Peter  Zenger,  a 
native  of  Germany,  established  the  New  York  Weekly 
Journal 'in  1733,  in  opposition  to  the  Gazette,  the  only 
other  paper  in  the  Colony,  which  was  the  government 
organ.  The  opposition  sheet  contained  frequent  and 
somewhat  severe  animadversions  on  the  administration 
of  Governor  William  Cosby,  but  the  grand  jury  refused 
to  return  an  indictment  against  the  outspoken  editor. 
The  attorney-general  then  charged  Mr.  Zenger  by  in- 
formation with  criminal  libel,  and  upon  this  information 
he  was  arrested,  Sunday,  November  17,  1734.  One  of 
the  offensive  articles  was  as  follows :  — 

The  people  of  this  city  and  province  think,  as  matters 
now  stand,  that  their  liberties  and  properties  are  precarious, 
and  that  slavery  is  like  to  be  entailed  on  them  and  their 
posterity,  if  some  past  things  be  not  amended. 

Another  of  the  more  serious  charges  was  the  pub- 
lication of  the  following,  quoting  from  a  man  who  had 
removed  from  New  York  to  Philadelphia  :  — 

We  see  men's  deeds  destroyed,  judges  arDitrarily  dis- 
placed, new  courts  erected  without  the  consent  of  the  legis- 
lature, by  which  it  seems  to  me,  trials  by  juries  are  taken 
away  when  a  governor  pleases;  men  of  known  estates  denied 
their  votes,  contrary  to  the  received  practice,  the  best  ex- 
positor of  any  law.     Who  is  there  in  that  province  that  can 

1  Franklin's  Select  Works,  p.  134. 


16  NEWSPAPER   LIBEL. 

call  anj-  thing  his  own,  or  enjoy  any  liberty  longer  than  those 
in  the  administration  will  condescend  to  let  them  do  it,  for 
which  reason  I  left  it,  as  I  believe  more  will  ? 

In  default  of  bail  in  the  sum  of  $2,000,  Mr.  Zenger 
was  confined  in  jail  for  more  than  eight  months,  await- 
ing his  trial.  During  this  time  the  Journal  was  pub- 
lished, and  its  opposition  to  the  administration  was 
unabated.  Mr.  Zenger's  editorial  duties  were  per- 
formed under  difficulties,  however,  as  is  shown  by  the 
following  extract  from  a  card  addressed  to  his  sub- 
scribers, contained  in  the  first  issue  of  the  Journal 
published  after  his  arrest :  — 

I  doubt  not  you'll  think  me  sufficiently  Excused  for  not 
sending  my  last  week's  Journal/,  and  I  hope  for  the  future 
by  the  Liberty  of  Speaking  to  my  Servants  thro'  the  Hole 
of  the  Door  of  the  Prison,  to  entertain  you  with  my  weekly 
Jour  nail  as  formerly. 

The  council  ordered  the  copies  of  the  paper  upon 
which  the  charges  were  based  to  be  Dtirned  by  the 
common  hangman,  but  the  magistrates  refused  their 
assent,  and  the  papers  were  burned  by  the  sheriff's 
servant. 

Mr.  Zenger's  counsel  were  James  Alexander  and 
William  Smith.  They  entered  upon  a  vigorous  defence, 
taking  exception  even  to  the  legality  of  the  commis- 
sions under  which  the  judges  held  their  office.  The 
Court  would  neither  allow  the  exceptions  nor  listen  to 
argument  upon  them,  saying,  "The  matter  has  come 
to  a  point  that  we  must  leave  the  bench  or  you  the 
bar";  and  the  names  of  the  two  gentlemen  were  ordered 
stricken  from  the  roll  of  attorneys.  The  prisoner's 
friends  then  retained  Andrew  Hamilton,  of  Philadelphia, 
who  was  about  eighty  years  old,  and  a  famous  lawyer  in 


INTRODUCTORY. 


17 


his  clay.  In  accordance  with  the  common  law,  Chief 
Justice  cle  Lancey  refused  to  admit  evidence  tending  to 
show  the  truth  of  the  alleged  libels,  and  as  the  prisoner 
did  not  deny  the  publication,  no  witnesses  were  exam- 
ined. "The  object  of  the  Court  appears  to  have  been 
to  induce  the  jury  to  return  a  special  verdict  that  the 
defendant  did  publish  the  papers,  and  leave  the  ques- 
tion of  libel  or  not  to  the  Court."1  Mr.  Hamilton  ably, 
eloquently,  and  fearlessly  argued  the  case,  appealing  to 
the  jury  to  be  themselves  witnesses  of  the  truth  of  the 
charges  which  the  defendant  was  denied  the  liberty  of 
proving.  The  jury  disregarded  the  intimation  of  the 
chief  justice,  and  returned  a  general  verdict  of  not 
guilty,  leaving  no  alternative  for  the  Court  but  to  dis- 
charge the  prisoner.  The  verdict  was  quickly  found, 
and  was  received  by  the  spectators  in  the  court  room 
with  cheers.  The  chief  justice  warned  the  spectators 
to  be  silent,  but  the  cheers  were '  vigorously  renewed. 
Mr.  Hamilton,  who  had  served  without  fee,  was  given 
an  entertainment,  and  the  common  council  presented 
him  with  the  freedom  of  the  city  for  "  the  remarkable 
service  done  by  him  to  the  city  and  Colony  by  his  learn- 
ing and  generous  defence  of  the  rights  of  mankind  and 
the  liberty  of  the  press."  When  he  started  on  his  re- 
turn to  Philadelphia,  a  salute  was  fired  in  his  honor  on 
the  banks  of  the  Hudson,  and  some  clays  later  the 
certificate  of  the  freedom  of  the  city  was  sent  to  him 
by  special  messenger,  duly  engrossed  upon  parchment 
and  bearing  the  city's  seal,  encased  in  a  box  of  gold, 
which,  as  the  historian  says,  was  "five  and  a  half  ounces 
in  weight."  The  result  of  the  case  of  John  Peter  Zen- 
ger  was,  according  to  Gouverneur  Morris,  "  the  dawn  of 

1  Chandler's  American  Criminal  Trials,  p.  205, 


1 8  NEWSPAPER   LIBEL. 

that    liberty    which    afterwards    revolutionized    Amer- 
ica."1 

Few  subjects  in  law  have  given  rise  to  more  contro- 
versy than  that  of  the  respective  provinces  of  the  Court 
and  jury  in  prosecutions  for  criminal  libel.  Lord  Mans- 
field, like  Chief  Justice  de  Lancey,  charged  the  jury  in 
a  noted  case  that  they  were  only  to  decide  whether  the 
defendant  had  published  the  matter  in  question,  and 
that  it  was  the  exclusive  province  of  the  Court  to  deter- 
mine whether,  as  a  matter  of  law,  the  publication  was 
libellous.  Bitter  hostility  to  this  doctrine  in  England 
led  to  the  passage,  in  1792,  of  Fox's  Libel  Act,  by  which 
the  jury  are  authorized  to  render  a  general  verdict  of 
guilty  or  not  guilty,  thus  guaranteeing  to  every  defend- 
ant the  right  of  having  the  character  of  the  publication, 
the  question  whether  it  is  lawful  or  unlawful,  passed 
upon  by  a  jury.  But  the  young  republic  was  no  longer 
subject  to  British  statutes,  and  for  a  few  years  longer 
the  earlier  construction  of  the  law  prevailed  in  this 
country. 

In  1768,  during  the  administration  of  Sir  Francis 
Bernard  as  governor  of  the  Province  of  Massachusetts 
Bay,  the  Boston  Gazette  published  an  article  which  was' 
deemed  a  scandalous  libel  upon  the  governor.  By 
advice  of  the  council,  the  chief  magistrate  laid  the 
matter  before    the   Assembly,    but  the   House    was   of 

'See  17  Howell's  State  Trials,  675;  Hudson's  Journalism  in  the  United 
States,  81-91.  The  practice  regarding  the  admission  of  evidence  of  the  truth 
111  defence  was  not  altogether  uniform  in  the  Colonies.  A  few  years  after  the 
trial  of  the  Zenger  case,  William  Parks,  the  government  printer  of  Virginia,  was 
arraigned  before  the  House  of  Assembly  on  a  charge  of  publishing  in  the  Gazette 
an.  assertion  that  a  certain  member  of  the  House  had  some  years  previously  been 
convicted  of  sheep-stealing.  Mr.  Parks  was  allowed  by  the  House,  in  spite  of 
opposition,  to  prove  by  the  records  of  the  courl  that  the  charge  was  true,  and 
was  acquitted.  The  member  retired  in  disgrace  from  public  life.  (See  Thomas' 
History  of  Printing  in  America,  vol.  II.,  p.  143.) 


INTRODUCTORY. 


19 


opinion  that  as  no  individual  was  named  in  the  article 
it  could  not  affect  the  majesty  of  the  king,  the  dignity 
of  the  government,  the  honor  of  the  General  Court,  or 
the  true  interests  of  the  Province,  and  accordingly  that 
body  took  no  further  notice  of  it.  The  chief  justice 
of  the  Superior  Court  then  charged  the  grand  jury  that 
unless  in  violation  of  their  oaths  they  could  not  avoid 
returning  an  indictment  against  the  publisher  of  the 
offending  article.  "  The  attorney-general  laid  a  bill 
before  them,  upon  which  they  returned  '  ignoramus,' 
and  thus  gave  a  sanction  to  libels,  which  multiplied 
more  than  ever."  l 

The  next  year  the  grand  jury  had  learned  to  look  upon 
libels  in  a  different  light,  returning  indictments  against 
Governor  Bernard  himself,  and  eight  others  of  the 
king's  officers,  for  libels  contained  in  certain  letters 
addressed  to  the  home  government,  wherein  defamatory 
language  was  used  concerning  the  inhabitants  of  Bos- 
ton and  of  the  Province.  The  attorney-general  had 
refused  to  draw  the  indictments  in  these  cases,  but  the 
grand  jury  had  the  bills  drawn  elsewhere,  and  returned 
them  into  court ;  the  Court,  however,  took  no  notice  of 
them,  and  finally  the  attorney-general,  by  order  of  the 
king,  entered  a  nol  pros,  in  each  of  the  cases.2 

In  the  first  years  after  the  formation  of  the  Union, 
when  the  government  was  an  experiment,  many  men 
still  feared  the  least  breath  of  party  controversy,  lest  it 
should  overthrow  the  newly  erected  national  fabric.  It 
was  at  this  time,  during  the  administration  of  John 
Adams,  that  the  Alien  and  Sedition  Laws  were  passed. 

1  Hutchinson's  History  of  Massachusetts  Bay,  vol.  III.,  p.  186.  It  should  be 
borne  in  mind  that  Governor  Hutchinson  was  a  Tory. 

2  Hutchinson,  vol.  III.,  p.  262. 


20  NEWSPAPER   LIBEL. 

The  latter  law1  declared  it  a  public  crime,  punishable 
by  fine  and  imprisonment,  for  any  person  unlawfully 
to  write,  print,  utter,  or  publish  any  false,  scandalous, 
and  malicious  writing  against  the  government  of  the 
United  States,  or  either  house  of  Congress,  or  the  Presi- 
dent, with  intent  to  defame  them,  or  bring  them  into 
contempt  or  disrepute,  or  to  excite  against  them  the 
hatred  of  the  people,  or  to  stir  up  sedition.  This  law 
had  a  direct  tendency  to  bring  about  the  very  condition 
of  affairs  which  it  sought  to  prevent,  and  its  constitu- 
tionality was  from  the  first  strenuously  denied  by  a  large 
party  in  the  government.  The  two  obnoxious  laws 
soon  expired  by  their  own' limitation. 

Shortly  after  their  expiration,  and  before  the  heated 
party  controversies,  which  were  at  once  the  cause  and 
effect  of  the  Alien  and  Sedition  Laws,  were  at  an  end, 
Harry  Croswell,  of  Hudson,  N.  Y.,  editor  of  the  Wasp, 
a  FederaTTst*'TTewspaper,  was  indicted  for  a  libel  on 
President  Jefferson.  The  objectionable  language  was 
published  September  9,  1802,  and  was  thus  set  out, 
with  innuendoes,  in  the  indictment  :  — 

Jefferson  \_thc  said  Thomas  Jefferson,  Esq.,  meaning]  paid 
Callender  \meaning  ojie  James  Thompson  Callender]  for 
calling  Washington  \nieaning  George  IVashinglon,  Esq , 
deceased,  late  President  of  the  said  United  States]  a  traitor, 
a  robber,  and  a  perjurer ;  for  calling  Adams  [meaning  John 
Adams,  Esq.,  late  President  of  the  said  United  States]  a 
hoary-headed  incendiary,  and  for  most  grossly  slandering  the 
private  characters  of  men  who  he  [meaning  the  said  TJiomas 
Jefferson]  well  knew  to  be  virtuous. 

At  the  July  term  of  the  Supreme  Court,  1803,  before 

1  Act  of  July  14,  1798,  chap.  91.     For  cases  under  this  law  see  Chap.  VIII.  on 
Political  Libels. 


INTRODUCTORY.  2 1 

a  single  justice,  the  defendant  offered  to  prove  that 
Callender  had  written  and  published  a  pamphlet  enti- 
tled "  The  Prospect  Before  Us,"  containing  the  defama- 
tory epithets  applied  to  Washington  and  Adams,'  and 
that  Jefferson  had  paid  Callender  fifty  dollars  before 
the  publication  of  the  pamphlet  and  the  same  amount 
afterward  as  a  reward,  "thereby  showing  his  approba- 
tion thereof."  The  Court  held  that  the  truth  of  the 
charges  against  Jefferson,  if  proved,  would  be  no  defence, 
and  that  "  it  was  no  part  of  the  province  of  a  jury  to 
inquire  or  decide  on  the  intent  of  the  defendant,  or 
whether  the  publication  in  question  was  true,  or  false, 
or    malicious."     The     defendant    was     convicted,    but 

.—  —  — — 

moved  for  a  new  trial  upon  exceptions  taken  to  the  rul- 
ings of  the  Court.  The  motion  for  a  new  trial  was 
argued  before  the  full  bench  at  the  May  term,  1804. 
Alexander  Hamilton  volunteered  as  counsel  for  the 
defendant,  and  conducted  the  case  with  consummate 
skill,  but  the  Court  was  equally  divided  on  the  question 
of  a  new  trial,  and  the  motion  was  lost.  The  public 
prosecutor  was  entitled  to  move  for  judgment  on  the 
verdict,  but  no  motion  for  judgment  was  ever  made.1 
A  few  weeks  later  Hamilton  was  killed  in  his  duel  with 
Aaron  Burr. 

Croswell  lost  his  case,  but  measures  were  at  once 
taken  to  remedy  the  law  upon  which  the  decision  was 
based.  A  bill  was  introduced  in  the  New  York  Assem- 
bly by  William  W.  Van  Ness,  providing  that  in  prose- 
cutions for  criminal  libel  the  truth  may  be  given  in 
evidence  in  defence,  when  the  alleged  libel  was  pub- 
lished "  with  good  motives  and  for  justifiable  ends," 
and  providing  that  the  jury  in  such  cases  shall  have  a 

1  The  People  v.  Croswell,  3  Johnson's  Cases,  336. 
2* 


22  NEWSPAPER   LIBEL. 

right  to  determine  the  law  and  the  fact,  and  shall  not 
be  required  by  the  Court  to  find  the  defendant  guilty 
merely  on  proof  of  the  publication  by  him  of  the  mat- 
ter charged  to  be  libellous,  and  of  the  sense  ascribed 
thereto  in  the  indictment.  This  bill  passed  both  houses 
unanimously,  and  became  a  law  April  6,  1805.  In 
182 1  its  provisions  were  incorporated  in  the  constitu- 
tion, and  have  ever  since  remained  a  part  of  the  funda- 
mental law  of  the  State.1  The  same  principles  are  now 
generally  maintained  in  this  country,  although  in  some 
States  the  right  of  the  jury  to  decide  the  law  and  the 
fact  amounts  to  nothing  more  than  the  power  to  do  so 
free  from  legal  accountability.2  In  a  few  States  the 
law-makers  have  gone  a  step  further,  and  declared  the 
truth  a  complete  defence  in  criminal  prosecutions  as 
well  as  in  civil  actions  for  libel,  the  words,  "with  good 
motives  and  for  justifiable  ends,"  being  omitted.3 

Until  the  case  of  Wason  v.  Walter,  tried  in  1867, 
the  right  of  English  newspapers  to  publish  proceedings 
in  Parliament  was  not  well  established.  Mr.  Wason,  a 
member  of  the  bar,  preferred  charges  against  Sir  Fitz- 
roy  Kelly,  chief  baron  of  the  Court  of  Exchequer,  and 

1  "  Every  citizen  may  freely  speak,  write,  and  publish  his  sentiments  on  all 
subjects,  being  responsible  for  the  abuse  of  that  right;  and  no  law  shall  be 
passed  to  restrain  or  abridge  the  liberty  of  speech  or  of  the  press.  In  all  crimi- 
nal prosecutions  or  indictments  for  libels,  the  truth  may  be  given  in  evidence  to 
the  jury;  and  if  it  shall  appear  to  the  jury,  that  the  matter  charged  as  libellous  is 
true,  and  was  published  with  good  motives,  and  for  justifiable  ends,  the  party 
shall  be  acquitted;  and  the  jury  shall  have  the  right  to  determine  the  law  and  the 
fact.'"  —  Constitution  of  New  Vork,  art.  i,  §  8. 

2  The  Legislature  of  Kansas  has  provided  that  in  prosecutions  for  criminal 
libel  the  jury  may,  at  their  discretion,  determine  the  law  as  well  as  the  fact,  and 
the  Supreme  Court  of  that  State  in  1887  ruled  that  the  defendant  is  therefore 
entitled,  by  himself  or  counsel,  and  under  the  superintendence  of  the  Court,  to 
present  and  argue  before  the  jury  his  theory  of  the  law  of  the' case,  although  it 
shall  differ  in  some  respects  from  that  given  by  the  Court  in  its  instructions. 
State  v.  Vcrry,  13  Pacific  Reporter,  838. 

3  See  Chap.  III.  on  Criminal  Libel. 


INTRODUCTORY. 


23 


petitioned  the  House  of  Lords  for  his  removal  from  the 
bench.  In  the  course  of  the  debate  uppn  the  petition, 
severe  strictures  were  cast  upon  the  petitioner.  The 
London  Times  published  a  report  of  the  debate,  and  an 
editorial  in  which  the  "  futility  and  malignity"  of  the 
charges  contained  in  the  petition  were  referred  to.  In 
Mr.  Wason's  suit  against  the  proprietor  of  the  limes, 
the  Court  held  that  a  faithful  report  of  the  debates  in 
the  Houses  of  Parliament  is  privileged,  and  that  the 
editorial  was  within  the  limits  of  fair  criticism.1  For 
many  years  there  were  standing  orders  of  both  Houses 
prohibiting  the  publication  of  their  proceedings.2 

With  respect  to  reports  of  legislative  matters,  the 
American  Colonies  followed  the  rule  which  was  in  vogue 
in  England.  The  publication  of  debates  was  not  gen- 
eral until  after  the  Revolution,  and  even  then  it  involved 
a  technical  breach  of  privilege.  An  injunction  of 
secrecy  was  imposed  upon  the  members  of  the  Consti- 
tutional Convention  of  1787,  and  the  Senate  sat  with 
closed  doors  till  1793.  In  the  lower  house  of  Congress, 
however,  the  presence  of  reporters  was  allowed  from 
the  outset,  but  the  speaker  claimed  the  right  of  regulat- 
ing their  admission.3  Reports  of  legislative  proceed- 
ings are  now  as  fully  privileged  throughout  this  country 
as  in  England. 

The  law  of  libel  is  too  little  understood  in  this  coun- 
try by  those  who,  whether  in  the  counting-room  or  "up- 
stairs," write  or  pass  judgment  upon  matter  to  be  pub- 
lished in  the  newspapers.  Publishers  and  editors  seem 
disposed  to  leave  the  whole  subject  of  their  legal  rights 

1  English  Law  Reports,  4  Queen's  Bench,  73. 

2  Odgers  on  Libel  and  Slander,  p.  258. 
:iCooley  on  Constitutional  Limitations,  p.  419. 


24  NEWSPAPER   LIBEL. 

and    liabilities  to  their  counsel,  and  counsel  are  per- 
fectly willing  t©  assume  charge  of  that  branch  of  the 
newspaper    business.      Unfortunately,    however,    little 
attention  is  generally  paid,  even  by  legal  advisers,  to 
the    question    of    the    actionable    character   of    matter 
which  is  published,  until  after  suit  is  brought,  and  then 
a  bill  of  costs,  and  often  of  damages,  remains  to  be 
paid.       Many  an    editor   or   proprietor   has    suddenly 
found  himself  a  defendant  in  a  tedious  and  expensive 
libel   suit   simply  from  the  carelessness  of  a  reporter, 
the  haste  of  a  telegraph  editor,  the  inadvertence  of  an 
advertising  clerk,  or  from  misunderstanding  on  the  part 
of  any  one  of  them  of  the  responsibility  of  his  posi- 
tion.    The  reporter  who  thinks  that  he  has  avoided  the 
possibility  of  a  suit  for  libel  by  omitting  the  name  of  a 
person  whom  he  charges  on  hearsay  evidence  with  some 
criminal  or  disgraceful  act,  makes  as  great  a  mistake  as 
the  news  editor  who  considers  all  responsibility  avoided 
by  a  liberal  use  of  such  expressions  as  "alleged"  and 
"it  is  asserted,"  sprinkled  through  the  copy  which  he 
edits ;   but  both  the  reporter  and  the  editor,  and   the 
proprietor  of  the  paper  as  well,  are  liable  to  answer  in 
damages  if  the  charge  is  false  and  defamatory.     "The 
stereotyped  formulas  of  slander,  '  they  say,'  '  it  is  said,' 
'  it  is  generally  believed,'  are   about  as  effectual  modes 
of  blasting  reputation  as  distinctly  and  directly  to  charge 
the  crime."  '     But  more  libel  suits  grow  out  of  just  such 
misconception  of  the  law  than  out  of  actual  intention 
to  attack  the  character  or  conduct  of  individuals. 

Late  one  night  in  February,  1869,  a  number  of  men 
called  at  the    office   of   the    New  Orleans    Times   and 

1  The  Court  in  Horace  B.  Johnson  v.  St.  Louis  Dispatch  Co.,  65  Mo.  (1877), 
54'- 


INTRODUCTORY. 


25 


stated  that  they  had  been  assaulted,  and  desired  the 
facts  published  as  a  matter  of  news.  The  managing 
editor,  after  a  long  controversy  with  them,  agreed  to 
insert  the  statement  as  an  advertisement,  signed  by  the 
men  who  made  the  charge.  It  was  accordingly  pub- 
lished in  the  following  form  :  — 

New  Orleans,  February  19,  1869. 

We,  the  undersigned,  most  respectfully  lay  before  the 
public  the  following  very  astonishing  facts  that  took  place 
last  night  near  the  Carrollton  depot:  While  we  were  on  our 
way  home  from  Carrollton  to  New  Orleans,  three  police  offi- 
cers of  the  above  place  assailed  us  with  revolvers  pointed 
to  us,  to  deliver  every  cent  we  had  about  us.  All  the  money 
that  we  had  was  five  dollars,  and  on  delivering  the  same 
they  left  off.  What  sounds  more  horrible  is  that  these  so- 
called  officers  were  accompanied  by  his  honor  Judge  Perret, 
judge  of  Carrollton  and  Canal  Avenue. 

Signed,  John   Briant, 

D.  L.  Thompson, 
W.  B.  Savory, 
H.  B.  DeLord, 

James  B.  Rum;, 
No.  413  Frenchman  Street. 

It  turned  out  that  the  names  were  fictitious,  the 
writers  unknown,  and  that  there  was  no  such  number  as 
413  Frenchman  Street.  The  only  ground  for  the  charge 
of  assault  was  the  fact  that  the  men  had  been  arrested 
in  Carrollton  for  disorderly  conduct,  and  that  one  of 
them  in  court  had  been  fined  five  dollars  by  Judge 
Perret.  The  managing  editor,  unfortunately,  did  not 
understand  that,  whether  the  signatures  were  fictitious 
or  genuine,  the  proprietor  of  the  newspaper  was  respon- 
sible for  the  truth  of  the  charges  contained  in  the  card. 


26  NEWSPAPER   LIBEL. 

The  Times  referred  to  the  case  on  the  following:  day  in 
an  editorial,  concluding  as  follows  :  — 

The  advertisers  in  question  have  assumed  a  responsibility 
by  their  publication  which  they  have  no  right  to  expect  us 
to  share  with  them. 

Judge  Perret,  however,  expected  the  proprietor  of  the 
paper  to  share  the  responsibility  with  the  advertisers  in 
question,  and  brought  a  suit  for  damages.  The  authors 
of  the  card  were  never  found,  hence  the  papers  in  the 
suit  against  them  were  never  served ;  but  the  libelled 
judge  recovered  judgment  for  $5,000  from  Charles  A. 
Weed,  proprietor  of  the  Times.1 

Newspaper  owners  and  writers  should  better  under- 
stand their  liability  in  cases  of  libel ;  but,  on  the  other 
hand,  the  "  dear  public "  should  understand  that  an 
action  for  libel  is  a  dangerous  experiment.  "The  law 
of  libel  .  .  .  cannot  redress  every  injury  sustained  by 
a  breach  of  morals  or  of  good  manners."  2  "  Many  a 
plaintiff,  even  though  nominally  successful,  has  bitterly 
regretted  that  he  ever  issued  his  writ.  Every  one  who 
proposes  to  bring  an  action  of  defamation  should  re- 
member that  he  is  about  to  stake  his  reputation  on  the 
event  of  a  lawsuit,  and  to  invite  the  public  to  be  spec- 
tators of  the  issue."3 

The  freedom  of  the  press  is  a  subject  of  constitu- 
tional guaranty  throughout  the  United  States,  but  the 
term  "freedom  of  the  press  "  has  been  frequently  mis- 
understood. As  has  been  already  intimated,  the 
expression  simply  means  exemption  from  press  censor- 

1  L.  Charles  Perret  v.  the  New  Orleans  Times  Newspaper,  25  La.  Annual 
Reports  (1873),  170. 

2  The  Court  in  James  Gordon  Bennett  v.  Amor  J.  Williamson  ct  al.  (New 
Vork  Sunday  Dispatch),  4  Sandford  (1851),  60. 

s  Odgers  on  Libel  and  Slander,  p.  449. 


INTRODUCTORY. 


27 


ship.  The  courts  do  not  take  cognizance  of  writings 
designed  for  the  press  in  advance  of  their  publication, 
and  an  injunction  will  not  be  granted  to  restrain  the 
publication  of  an  alleged  libel.1  The  liberty  of  the 
press  has  been  defined  as  "  a  right  to  freely  publish 
whatever  the  citizen  may  please,  and  to  be  protected 
against  any  responsibility  for  so  doing,  except  so  far 
as  such  publications,  from  their  blasphemy,  obscenity, 
or  scandalous  character,  may  be  a  public  offence  ;  or 
as  by  their  falsehood  or  malice  they  may  injuriously 
affect  the  standing,  reputation,  or  pecuniary  interests  of 
individuals."2 

Few  periodicals  in  this  country  ever  produced  more 
commotion  in  proportion  to  their  age  and  size  than  the 
Mascot,  an  illustrated  weekly  issued  in  New  Orleans. 
W.  Van  Benthuysen  was  one  of  the  objects  of  its  satire. 
He  appeared  before  Judge  Monroe  of  the  Civil  District 
Court  and  represented  that  the  proprietors  of  the  Mas- 
cot had  published  defamatory  cartoons  and  other  matter 
concerning  him,  and  that  he  feared  that  the  libels 
would  be  repeated  in  future  issues,  and  prayed  for  an 
injunction  restraining  the  proprietors  from  publishing 
any  matter  "  calculated  to  disparage  him  in  the  estima- 
tion of  the  community."  The  injunction  was  granted, 
but  was  promptly  disobeyed,  the  proprietors  manifesting 
great  indifference  to  the  estimation  in  which  the  com- 
munity should  hold  Mr.  Van  Benthuysen.  The  pro- 
prietors were  then  committed  to  the  parish  prison  for 
ten  days  for  contempt.  The  case  was  carried  before  the 
Supreme  Court  of  Louisiana,  where  it  was  declared 
unconstitutional  to  enjoin  the  publication  of  libels.    "  It 

1  Adams  on  Equity,  p.  216. 

2  Cooley  on  Constitutional  Limitations,  p.  422. 


28  NEWSPAPER   LIBEL. 

would  establish  a  complete  censorship  over  the  press  so 
enjoined,"  said  the  Court.  "Under  the  operation  of 
such  a  law,  with  a  subservient  or  corrupt  judiciary,  the 
press  might  be  completely  muzzled,  and  its  just  influence 
upon  public  opinion  entirely  paralyzed.  Such  powers 
do  not  exist  in  courts,  and  they  have  been  constantly  dis- 
claimed by  the  highest  tribunals  of  England  and  Amer- 
ica." The  entire  proceedings  against  the  proprietors 
of  the  Mascot  were  accordingly  declared  null  and  void.1 

It  has  been  said  that  without  the  guaranty  of  a  free 
press,  government  by  the  people  would  be  impossible. 
Nevertheless,  it  has  been  asserted  by  a  no  less  distin- 
guished jurist  than  David  Dudley  Field  that  "  if  a  con- 
stitutional provision  on  the  subject  of  the  press  is 
needed  at  all,  it  is  for  its  restraint  instead  of  its  protec- 
tion." ~  In  the  course  of  an  extended  article  Mr.  Field 
said  :  — 

The  condition  of  the  newspaper  press  in  this  country  is  a 
subject  of  constant  observation  and  constant  complaint. 
Nobody  defends  it.  The  newspapers  themselves  deplore 
it.  .  .  .  Jefferson  said,  in  his  time,  that  the  press  was  putrid. 
It  has  since  become  putrescence  putrefied.  The  first  effect 
is  to  make  cowards  of  nine-tenths  of  our  public  men.  .  .  . 
Our  law  of  libel,  it  must  be  confessed,  is  imperfect,  and  our 
administration  of  it  still  more  so.     It  is  generally  assumed, 

1  The  State,  on  the  information  of  Joseph  Liversey  et  al.,  v.  F.  A.  Monroe,  34 
La.  Annual  Reports  (1882),  741.  In  Texas  it  is  provided  by  statute  that  any  per- 
son may  make  oath  before  a  magistrate  that  he  has  reason  to  believe  that  another 
■at  to  publish  or  circulate,  or  is  continuing  to  publish  or  circulate,  a  libel 
against  him,  and  the  person  accused  may  be  required  to  give  a  bond  with  surety 
not  to  publish  or  circulate  such  libel.  (Code  of  Criminal  Procedure,  art. 
103.)  It  is  also  provided  that  upon  conviction  for  libel  the  Court  may  direct  the 
sheriff  to  seize  and  destroy  all  the  publications  containing  the  libel.  (Penal 
Code,  art.  617.) 

-  International  Review,  July-August,  1876. 


INTRODUCTORY. 


29 


that  the  truth  of  a  story  is  a  sufficient  reason  for  publishing 
it.  The  assumption  is  wrong.  .  .  .  There  are  many  cases 
where  the  truth  should  not  be  published.  .  .  .  Every- 
where else  in  the  world  reputation  is  protected.  It  is  only 
here  that  it  has  lost  all  protection.  .  .  .  The  practical  re- 
sult of  a  civil  trial  for  libel  nowadays  is  a  reversal  of  po- 
sitions, and  the  trial  of  the  plaintiff  upon  his  general  char- 
acter, instead  of  a  trial  of  the  defendant  for  libel. 

It  is  not  believed  that  the  tone  of  the  American  press 
has  either  materially  improved  or  materially  deteriorated 
since  Mr.  Field's  article  was  written,  and  the  condition 
of  the  law  remains  substantially  the  same  ;  accordingly 
his  comments  are  still  worthy  of  respectful  considera- 
tion. 

President  Cleveland  also,  in  a  published  letter  to 
Joseph  Keppler  of  Puck,  under  date  of  December  12, 

1885,  wrote  :  — 

I  have  just  received  your  letter  with  the  newspaper  clip- 
ping which  caused  you  so  much  annoyance.  I  don't  think 
there  ever  was  a  time  when  newspaper  lying  was  so  general 
and  so  mean  as  at  present,  and  there  never  was  a  country 
under  the  sun  where  it  flourished  as  it  does  in  this.  The 
falsehoods  daily  spread  before  the  people  in  our  newspa- 
pers, while  they  are  proofs  of  the  mental  ingenuity  of  those 
engaged  in  newspaper  work,  are  insults  to  the  American 
love  for  decency  and  fair  play  of  which  we  boast.  ...  If 
you  ever  become  a  subject  of  newspaper  lying,  and  at- 
tempt to  run  down  and  expose  all  such  lies,  you  will  be  a 
busy  man,  if  you  attempt  nothing  else. 

And  in  an  address  at  Harvard  College,  November  8, 

1886,  he  said  :  "No  public  officer  should  desire  to  check 
the  utmost  freedom  of  criticism  as  to  all  official  acts, 
but  every  right-thinking  man  must  concede  that  the 
President   of   the    United    States    should    not  be   put 


3° 


NEWSPAPER   LIBEL. 


beyond  the  protection  which  American  love  for  fair 
play  and  decency  accords  to  every  American  citizen. 
This  trait  of  onr  national  character  would  not  encourage, 
if  their  extent  and  tendency  were  fully  appreciated,  the 
silly,  mean,  and  cowardly  lies  that  every  day  are  found 
in  the  columns  of  certain  newspapers  which  violate 
every  instinct  of  American  manliness,  and  in  ghoulish 
glee  desecrate  every  sacred  relation  of  private  life." 

Frederick  Hudson,  too,  comments  on  the  fact  that 
"  the  newspapers  are  filled  with  personal  allusions,  and 
all  sorts  of  charges  are  made  against  individuals  and 
office-holders."  "  Let  us  have  a  national  law  of  libel," 
he  adds,  "  a  national  code  that  will  benefit  alike  the 
press  and  the  public.  That  will  be  a  step  in  the  right 
direction."  J  Unfortunately,  however,  that  step  cannot 
be  taken  until  the  powers  of  Congress  are  enlarged  by 
an  amendment  to  the  Constitution. 

The  assertion  by  Mr.  Field,  that  it  is  only  in  America 
that  reputation  has  "  lost  all  protection,"  is  seemingly 
disproved  by  the  following  extract  from  a  more  recent 
English  writer  :  — 2 

Individual  calumniation  has  undoubtedly  become  the 
offence  of  the  day.  For,  take  up  a  newspaper  at  almost  aiiy 
time,  and  there  probably  will  be  found  some  "  Important 
Charge  of  Libel,"  a  previous  notification  of  which  in  the 
"  contents  bill  "  of  the  paper,  will  have  materially  increased 
its  circulation  pro  hdc  vice.  In  The  Times  of  May  15th, 
1880,  no  less  than  four  libel  cases  were  reported,  and  they 
occupied  in  the  aggregate  nearly  one  page  of  that  journal  ! 

In  the  article  above  quoted  David  Dudley  Field  sug- 
gested, as  a  remedy  for  the  evil  which  he  deplored,  that 
a  verdict  by  two-thirds  of  the  jury  in  a  civil  action  for 

1  Hudson,  Journalism  in  the  United  States,    p.  757. 

=  Flood  on  Libel  and  Slander  (London,  1880),  p.  xxxiv. 


INTRODUCTORY. 


31 


libel  be  allowed  by  law ;  that  a  speedy  trial  be  assured 
by  giving  libel  cases  preference  on  the  calendar  ;  that 
there  be  a  given  sum  fixed  as  a  penalty,  to  be  awarded 
in  all  cases  of  ascertained  and  unjustifiable  libel,  unless 
the  jury  agree  upon  a  larger  sum  •  that  the  defendant 
be  not  allowed  to  attack  the  plaintiff's  character  at  the 
trial  except  in  strict  justification  of  the  libel ;  that  the 
name  of  a  responsible  individual  publisher  of  every 
newspaper  be  registered,  and  that  the  name  of  the 
writer  be  published  at  the  foot  of  every  article  in  which 
reflection  is  cast  on  the  character  of  any  person. 

It  cannot  be  denied  that  public  interests  demand 
some  restraint  upon  the  press  in  respect  of  defamation 
of  character,  but  there  is  greater  clanger  of  too  much 
than  of  too  little  restraint.  Especially  should  the  press 
be  protected  from  frivolous  and  vexatious  suits  for  libel. 
A  worthless  lawyer  on  behalf  of  a  worthless  client  may, 
at  pleasure,  bring  suit  for  damages;  and  although  his 
case  is  equally  worthless,  he.  may  compel  the  publisher 
to  defend  the  suit  at  a  considerable  outlay  of  time 
and  money.  In  an  editorial  entitled  "  Frivolous  Libel 
Suits,"  the  Philadelphia  Times  for  February  9,  1888, 
said :  — 

The  average  cost  of  defending  a  libel  suit,  including  the 
necessary  time,  preparation,  employment  of  counsel,  etc.,  is 
about  $500,  all  of  which  the  defendant  must  pay  for  the  lux- 
ury of  being  buffeted  in  the  courts  on  complaints  which 
are  wholly  the  inventions  of  suitors  or  lawyers.  The  Times 
has  paid  over  $20,000  for  the  defence  of  libel  suits  since  it 
was  founded  thirteen  years  ago,  and  there  is  a  judgment  of 
acquittal  or  for  the  defence  in  every  case.  In  other  words, 
this  journal  has  paid  over  $20,000  as  the  price  of  exposing 
wrong-doers  and  battling  with  foolish  suitors  or  worse  than 


32 


NEWSPAPER   LIBEL. 


foolish  lawyers,  to  maintain  the  freedom  of  the  press  in  the 
most  liberal  civilization  of  the  world.  There  is  no  redress 
for  this  wrong  against  journalism,  and  there  can  be  none 
until  defeated  libel  suitors  are  made  liable  for  all  actual 
costs  and  expenses  of  the  defendant  when  in  the  judgment 
of  a  jury  the  action  is  unwarranted.1 

By  statute  in  California  the  defendant  in  libel  actions 
is  granted  the  redress  recommended  by  the  Times.  The 
Code  of  Civil  Procedure  (sec.  460,  s)  provides  :  — 

In  an  action  for  libel  or  slander  the  clerk  shall,  before 
issuing  the  summons  therein,  require  a  written  undertaking 
on  the  part  of  the  plaintiff  in  the  sum  of  $500,  with  at  least 
two  competent  and  sufficient  sureties,  ...  to  the  effect 
that  if  the  action  be  dismissed  or  the  defendant  recover 
judgment,  that  they  will  pay  such  costs  and  charges  as 
may  be  awarded  against  the  plaintiff  .  .  .  not  exceeding 
$500.  .  .  . 

In  case  the  plaintiff  recovers  judgment,  he  shall  be 
allowed  as  costs  $100,  to  cover  counsel  fees,  in  addi- 
tion to  the  other  costs.  In  case  the  action  is  dismissed 
or  the  defendant  recovers  judgment,  the  defendant 
shall  have  the  same  allowance.  But  if  the  plaintiff  re- 
covers judgment  for  less  than  $300,   he  is  not  entitled 

1  Mr.  Matthews,  the  accomplished  editor  of  the  Buffalo  Express,  has  been 
making  some  interesting  statements  with  regard  to  his  experience  in  libel  suits. 
In  twenty-five  years  of  professional  labor,  he  has  been  sued  for  libel  a  dozen 
times,  and  in  only  one  instance  has  the  jury  brought  in  a  verdict  against  him. 
That  was  in  a  case  tried  in  the  plaintiff's  own  town,  before  a  jury  of  his  friends 
and  neighbors,  and  they  gave  him  $1,000  damages.  This  case,  Mr.  Matthews 
says,  has  been  appealed;  and  what  is  more,  he  adds  that  he  has  never  retracted 
or  apologized  after  a  suit  against  him  had  been  begun.  —  New  York  Stin,  May 
29,  1887. 

George  Jones,  of  the  New  York  Times,  is  quoted  as  saying:  "  I  believe  there 
are  only  six  or  seven  suits  pending  against  the  Times.  That's  rather  a  small 
crop.  This  is  a  bad  year  for  'em.  I  've  been  in  the  newspaper  business  thirty-five 
years,  and  have  always  had  from  four  to  sixteen  libel  suits  on  hand,  and  have 
never  yet  paid  one  cent  damages." —  The  Journalist,  March  13,  1886. 


INTRODUCTORY. 


33 


to  costs.  This  provision  of  the  California  statutes 
seems  reasonable,  despite  the  objection  that  it  would 
sometimes  work  hardship  in  the  case  of  a  poor 
man  who  was  seeking  redress  for  an  attack  upon  his 
character.1 

Another  serious  defect  in  the  law  as  it  stands  at 
present  seems  to  be  the  inequitable  assumption  that 
every  publication  which  is  false  and  defamatory  is 
prompted  by  malice.  The  modern  newspaper  perforins 
daily  an  important  public  service.  It  has  become  a 
part  of  our  social,  commercial,  and  political  system,  and 
we  could  not,  if  we  would,  go  back  to  the  time  when 
the  newspaper  was  a  little  weekly  sheet  containing  a 
smattering  of  the  news  of  a  month  before.  Business 
and  social  interests  demand  prompt  publication  of  all 
the  news  of  all  the  world,  and  the  editor  cannot  stop 
the  press  to  verify  every  detail  in  the  news  of  the  clay. 
Nevertheless,  if  in  any  detail  an  item  of  news  is  defama- 
tory of  an  individual  and  false,  the  law  conclusively 
assumes  that  the  writer,  the  editor,  and  the  publisher 
were  all  actuated  by  malice  in  making  the  publication. 
Let  malice  be  affirmatively  proved,  and  if  the  publica- 
tion is  false  and  injurious,  no  honest  man  will  question 
the  justice  of  a  verdict  against  the  libeller ;  but  where 
actual  malice  is  disproved  and  no  damage  has  been 
sustained,  a  plaintiff  has  no  just  claim  even  for  his 
costs. 

The  National  Editorial  Association,  at  its  session  in 
Denver  in  1887,  recommended  the  passage  of  a  bill  in 
the  following  form  by  the  various  State  and  Territorial 
Legislatures  :  —  2 

1  The  Provincial  Legislature  of  Ontario,  in  iS37,  passed  a  statute  in  some 
respects  similar  to  that  in  California. 

2  Denver  News,  Sept.  i6,  1887. 


34 


NEWSPAPER   LIBEL. 


Be  it  enacted  by  the  General  Assembly  of  the  State  of . 

Section  i.  Where  alleged  libellous  publications  are 
made,  malice  shall  not  be  presumed  unless  a  retraction  or 
apology  is  refused  to  be  made,  or  unless  the  circumstances 
surrounding  the  publication  and  the  refusal  to  retract  or 
apologize  conclusively  prove  malice. 

There  is  another  aspect  of  the  question  of  malice 
which  is  sometimes  lost  sight  of  in  the  courts  :  it  is 
that  of  malice  on  the  part  of  the  plaintiff.  Many  libel 
suits  are  little  better  than  black-mailing  schemes,  as  is 
indicated  by  the  number  of  frivolous  actions  which  are 
constantly  being  brought,  in  the  hope  of  frightening 
newspaper  publishers  into  settlements  out  of  court. 
Where  malicious  charges  of  criminal  libel  are  preferred, 
there  is  perhaps  an  adequate  remedy  by  an  action  for 
malicious  prosecution ;  but  civil  actions  for  alleged  libel 
may  be  multiplied  with  impunity  in  most  of  the  States, 
to  the  annoyance  and  serious  inconvenience  of  news- 
paper publishers. 

During  the  session  of  1SS5  a  bill  was  introduced  in 
the  Massachusetts  Legislature,  providing  for  the  exemp- 
tion from  attachment  of  certain  newspaper  property. 
The  bill  grew  out  of  libel  proceedings  instituted  by  a 
couple  of  young  attorneys  named  Prince  and  Peabody 
against  the  Boston  Saturday  Eve?iing  Gazette.  The 
Gazette,  in  its  issue  for  March  21,  1885,  published  an 
editorial  commenting  upon  a  suit  which  had  just  been 
tried,  wherein  a  young  lady  from  New  York  vainly 
sought  to  recover  damages  from  a  Boston  hotel  proprie- 
tor for  certain  jewelry  which  had  been  stolen  from  her 
room.     In  the  course  of  the  editorial  the  writer  said:  — 

In  view  of  such  advice,  whatever  may  be  thought  of  the 
necessity  of  a  guardian  for  a  young  lady  who  scatters  treas- 


INTRODUCTORY.  35 

ure  about  in  this  promiscuous  manner,  it  is  clear  that  a 
whole  batch  of  guardians  would  not  have  been  amiss  to 
take  absolute  charge  of  such  advisers.  .  .  .  The  advice 
she  received  from  her  lawyers  was  not  worth  a  straw.  .  .  . 
The  hotel  has  received  an  excellent  advertisement,  and  the 
only  consolation  that  remains  to  the  plaintiff,  as  she  draws 
her  purse  and  foots  the  bills,  will  be  to  make  a  resolution 
that  in  the  future  she  will  be  extremely  careful  in  relying 
upon  callow  legal  advice,  and  will  be  very  much  more  par 
ticular  as  to  the  use  of  locks  and  bolts. 

It  happened  that  Prince  &  Peabody  were  the  legal 
advisers  thus  referred  to.  Mr.  Peabody  at  once  began 
a  civil  action  against  the  Gazette  for  $300  damages,  and 
Mr.  Prince  brought  the  case  to  the  attention  of  the 
district  attorney,  with  a  view  to  criminal  proceedings 
The  constable  was  instructed  to  serve  the  writ  in  the 
civil  action  a  few  minutes  before  midnight,  Saturday, 
March  28,  and  to  attach  the  forms  of  two  pages  of  the 
Gazette.  Inasmuch  as  the  paper  is  issued  Sunday 
mornings,  the  publisher  was  required  to  deliver  to  his 
subscribers  a  four-page  paper,  in  which  the  outside 
pages  were  reprinted  upon  the  inside.  Monday  morning 
the  forms  were  released  from  attachment,  and  a  new 
edition  of  the  Gazette  was  published.  In  the  course 
of  an  editorial  headed  "Legalized  Gagging,"  in  the 
issue  of  Monday,  the  editor  said :  — 

Every  offer  pointing  towards  ample  security  was  con- 
temptuously rejected.  It  was  the  cheap,  every-day  trick  of 
a  well-known  class  of  New  York  pettifogging  lawyers,  and 
which  has  the  contempt  of  all  self-respecting  men ;  but  it 
served  its  purpose,  and  its  instigator  has  achieved  the  ques- 
tionable honor  of  having  slyly,  treacherously,  and  success- 
fully impeded  our  business  for  the  time  being;  of  having 
injured  the  business  of  those  who  had  sought  our  columns 


36  NEWSPAPER  LIBEL. 

for  advertising  purposes  ;  and  of  having  insulted  our  sub- 
scribers who  were  not  concerned  with  him  or  with  the  small 
money  value  he  places  upon  his  wounded  honor.  .  .  . 
The  real  question  at  issue  is  not  whether  Mr.  Peabody's 
honor  is  worth  three  hundred  coppers  or  three  hundred  dol- 
lars ;  but  whether  every  ill-informed,  blundering,  and  irre- 
sponsible lawyer  or  other  person  seeking  revenge  for  an 
injury,  real  or  imaginary,  has  the  power,  when  malice  directs, 
to  stop  the  business  of  responsible  parties  upon  a  moment's 
notice.  .  .  .  Every  merchant,  every  individual  in  the  com- 
munity, is  liable  to  become  the  victim  of  dishonesty  or 
malice  in  this  way.  It  should  be  made  impossible,  and  if 
there  is  no  law  to  meet  such  cases,  the  sooner  laws  are  made 
the  safer  business  will  be  from  the  interruptions  of  mis- 
chievous and  malicious  irresponsibles. 

The  mayor  of  Boston  at  once  sent  a  communication 
to  the  Board  of  Aldermen  (subject,  however,  to  the 
approval  of  that  board)  removing  from  office  the  con- 
stable who  served  the  writ,  on  the  ground  that  the  ser- 
vice of  the  attachment  under  the  circumstances  was  an 
abuse  of  legal  process  ;  but  the  aldermen  suffered  the 
matter  to  lie  upon  the  table,  with  the  understanding 
that  the  officer  should  not  be  reappointed  upon  the 
expiration  of  his  term.  A  bill  was  immediately  intro- 
duced in  the  Legislature,  the  purpose  of  which  was  to 
prevent  malicious  attachments  being  placed  upon  news- 
paper property  at  such  times  and  under  such  circum- 
stances as  to  interfere  with  publication.  This  bill 
passed  the  House,  but  was  adversely  reported  upon  by 
the  Senate  Judiciary  Committee.  Its  defeat  was  thus 
commented  upon  by  the  Boston  Journal: —  l 

If  there  was  any  flaw  in  the  bill,  it  ought  to  have  been 
possible  for  the  Senate  Judiciary  Committee  torectify  it,  and 

1  May  ii,  1885. 


INTRODUCTORY. 


37 


if  necessary  to  report  the  bill  in  a  new  draft,  but  its  action 
in  making  an  adverse  report  is  a  surprise.  The  protection 
which  is  asked  for  newspaper  interests  is  essentially  right 
and  proper,  and  recent  circumstances  prove  conclusively  that 
it  is  necessary. 

Nothing  ever  came  of  either  the  civil  or  criminal 
proceedings  against  the  publisher  of  the  Gazette. 

A  statute  regarding  costs,  similar  to  that  in  Califor- 
nia cited  above,  would  go  a  long  way  toward  securing 
to  the  press  due  legal  protection  against  groundless 
actions  for  libel ;  and  a  law  regarding  exemption  from 
attachment  of  certain  newspaper  property,  such  as 
that  which  failed  of  enactment  in  Massachusetts  in 
1885,  would  be  a  worthy  companion  to  it  in  the  statute 
books. 


38  NEWSPAPER   LIBEL. 


CHAPTER    II. 

THE    CIVIL    ACTION    OF    LIBEL. 

Every  attempt  to  define  the  word  "  libel "  l  has  been 
more  or  less  severely  criticised,  and  the  critic  has  in 
turn  framed  a  definition  of  his  own,  only  to  find  his 
definition  treated  like  all  the  rest.  The  law  of  libel, 
indeed,  has  been  called  vague  and  uncertain,  and  diffi- 
cult to  reduce  to  exact  principles.  One  reason  for  this 
is  the  fact  that  this  branch  of  the  law  is  based  rela- 
tively less  upon  statutes,  and  more  upon  precedents, 
than  other  divisions  of  the  law ;  and  to  this  fact  per- 
haps may  be  attributed  in  some  measure  the  difficulty 
of  finding  a  satisfactory  definition.  Under  these  cir- 
cumstances the  writer  may  perhaps  be  pardoned  for 
not  offering  a  definition  of  his  own,  contenting  himself 
with  quoting  some  of  the  attempts  of  other  writers 
upon  the  subject. 

"  A  libel  is  a  censorious  or  ridiculing  writing,  picture, 
or  sign,  made  with  a  mischievous  and  malicious  intent 
towards  government,  magistrates,  or  individuals."  This 
definition  was  given  by  Alexander  Hamilton  in  the 
course  of  his  argument  in  the  famous  case  of  the  Peo- 
ple v.  Croswell,2  and  the  definition  is  as  noted  as  the 

1  The  word  is  derived  from  the  Latin  libcllus,  which  is  diminutive  of  liber, 
a  book.  It  acquired  its  bad  signification  from  the  phrase  libcllus  famosus,  a 
defamatory  book  or  pamphlet,  the  adjective  having  in  time  been  dropped  in 
common  use. 

2  3  Johnson's  Cases  (N.  Y.),  354.     (See  ante,  p.  20.) 


THE  CIVIL  ACTION   OF   LIBEL.  39 

case  itself.  In  a  curious  little  book,  published  in  1674, 
and  printed  in  old  English  text,  the  writer  says  :  "  A 
libel  is  taken  for  a  scandalous  writing,  or  act  done, 
tending  to  the  defamation  of  another."1  These  defini- 
tions mark  the  distinction  between  slander  and  libel ; 
that  while  slander  is  any  form  of  defamation  addressed 
to  the  ear,  libel  is  any  form  of  defamation  addressed  to 
the  eye.  A  libel  maybe  contained  in  a  picture,2  and  it 
is  also  a  libel  to  scandalize  any  one  by  hanging  him  in 
effigy  or  by  carrying  a  fellow  about,  dressed  with  horns, 
bowing  at  the  plaintiffs  door.3  Burrill  briefly  defines 
a  libel  as  "  written  defamation,"  while  to  Jeremy  Ben- 
tham  is  attributed  the  following  despairing  attempt  at 
a  definition  :  "A  libel  is  anything  published  upon  any 
matter  of  anybody  which  any  one  was  pleased  to  dis- 
like." Lord  Kenyon  was  equally  indefinite  :  "A  man 
may  publish  whatever  a  jury  of  his  countrymen  think  is 
not  blamable."  In  several  of  the  States  the  difficulties 
of  the  subject  are  met  by  statute.  Thus  the  New 
York  Penal  Code  :  — 

§  242.  —  A  malicious  publication,  by  writing,  printing, 
picture,  effigy,  sign  or  otherwise  than  by  mere  speech,  which 
exposes  any  living  person,  or  the  memory  of  any  person 
deceased,  to  hatred,  contempt,  ridicule  or  obloquy,  or  which 
causes  or  tends  to  cause  any  person  to  be  shunned  or 
avoided,  or  which  has  a  tendency  to  injure  any  person,  cor- 
poration or  association  of  persons,  in  his  or  their  business 
or  occupation,  is  a  libel. 

Dakota  legislators  are  more  brief  :  — 4 

1  Sheppard  on  Slander,  p.  282. 

2  The  Queen  i'.  Alexander  M.  Sullivan  {Weekly  News'),  11  Cox's  Crimina 
Law  Cases  (.Eng.  1868),  44  and  51. 

3  Sir  William  Bolton  v.  Deane,  referred  to  in  2  Shower  (Eng.  1684),  314. 

4  Penal  Code,  §  651 1. 


4o  NEWSPAPER    LIBEL. 

Any  malicious  injury  to  good  name,  other  than  by  words 
orally  spoken,  is  a  libel. 

A  writer  in  Sell's  "  Dictionary  of  the  World's  Press  " l 
presents  a  good  definition,  which,  shorn  of  its  tautol- 
ogy, is  as  follows  :  — 

Words  or  pictures  which  expose  a  person  to  hatred  or 
contempt,  which  tend  to  injure  him  in  his  profession  or 
trade,  or  cause  him  to  be  shunned  by  his  neighbors,  which 
impute  to  him  any  crime,  dishonesty  or  immorality,  or  unfit- 
ness for  any  office  or  position  which  he  fills  or  aspires  to  fill, 
want  of  skill  or  knowledge  requisite  for  his  profession,  or 
which  impute  to  a  merchant  insolvency  or  embarrassment 
past,  present  or  probable. 

These  definitions  in  general  terms  Apply  equally  to 
criminal  libels  and  libels  considered  in  respect  to  the 
injury  which  they  cause  to  individuals. 

The  law  of  libel  has  many  things  in  common  with 
the  law  of  slander.  The  former  wrong,  however,  is  con- 
sidered the  more  serious,  inasmuch  as  it  indicates 
greater  malice,  is  less  likely  to  be  a  result  merely  of 
sudden  passion,  and  is  generally  more  permanent  in  its 
character  and  more  widely  propagated.  Some  words, 
as  "swindler"  and  "rascal,"  have  been  held  to  be 
actionable  when  written  and  published,  but  not  action- 
able when  merely  spoken,  unless  some  special  damage 
is  shown  to  have  resulted  from  their  use.  "To  consti- 
tute legal  slander,"  says  Christian  in  his  notes  upon 
Blackstone,  "  the  words  must  impute  a  precise  crime ; 
hence,  it  is  actionable  to  say  a  man  is  a  highwayman, 
but  it  is  not  so  to  say  he  is  worse  than  a  highwayman." 
On  the  other  hand,  either  charge  would  doubtless  be 
held  to  be  libellous  if  published  in  a  newspaper. 

1  London,  1887,  p.  72. 


THE  CIVIL  ACTION   OF   LIBEL. 


41 


A  libel  is  both  a  tort  and  a  crime.  It  is  a  crime  or 
public  wrong,  inasmuch  as  it  tends  to  create  a  breach 
of  the  peace,  and  as  such  it  is  indictable  ;  it  is  a  tort, 
or  private  wrong,  inasmuch  as  it  tends  to  injure  one's 
reputation  by  exposing  him  to  public  hatred,  ridicule,  or 
contempt.  The  remedy  for  the  private  wrong  is  a  civil 
action  for  damages.1 

The  truth  is  in  nearly  every  State  in  the  Union  a 
complete  defence  in  a  civil  action  for  libel.2  The  gist 
of  the  action  is  the  injury  to  reputation ;  and  if  the 
defamatory  charge  is  shown  to  be  true,  the  person 
against  whom  it  was  directed  has  at  best  suffered  an 
injury  to  a  reputation  to  which  his  true  character  did 
not  entitle  him. 

Falsehood,  malice,  and  injury  are  said  to  be  essential 
in  civil  or  criminal  proceedings  for  libel.  But  the  law 
assumes  the  falsity  of  a  defamatory  publication  until  the 
truth  is  shown  ;  and  if  the  publication  is  false,  malice 
is  also  an  assumption  of  law,  unless  the  publication  is 
privileged.3  Finally  injury  is  assumed  where  the  lan- 
guage is  false  and  defamatory,  injury  to  reputation, 
without  pecuniary  loss,  being  generally  sufficient  to 
sustain  the  action. 

The  word  "  malicious  "  is  made  a  part  of  most  defi- 
nitions of  libel,  and  is  employed  in  every  declaration, 
complaint,  and  indictment.  Most  text-writers  further- 
more maintain  that  malice  is  essential  to  an  action  or 
prosecution  for  libel ;  but  the  word  "  malice,"  as  thus 
used,  means  simply  the  absence  of  legal  excuse. 
Save  as  affecting  the  amount  of  damages,  the  question 

1  An  injunction  will  not  issue  to  restrain  the  publication  of  a  libel.  (See 
p.  27.)     Kidd  v.  Horry,  28  Federal  Reporter  (1886),  773. 

2  See  Chap.  IX.  on  Defences. 

3  See  Chap.  VII.  on  Privileged  Publications. 


42 


NEWSPAPER   LIBEL. 


of  actual  malice,  in  the  sense  of  personal  ill-will  or 
wicked  intent,  is  only  material  when  the  defendant 
claims  that  the  publication  is  privileged.  If  the  publi- 
cation is  false  and  defamatory,  but  consists  in  a  report 
of  judicial  proceedings  or  lawful  comments  upon  matters 
of  public  interest,  or  is  otherwise  privileged,  the  burden 
of  proving  actual  malice  is  thrown  upon  the  plaintiff  ; 
but  if  the  publication,  being  false  and  defamatory,  is 
not  thus  privileged,  malice  is  a  conclusive  assumption 
of  law,  and  the  defendant  cannot  show  in  his  defence 
that  the  matter  was  published  without  malicious  intent. 
If,  on  the  other  hand,  the  publication  is  true,  it  is  gen- 
erally immaterial  in  a  civil  action  for  libel  whether  it 
was  dictated  by  malice  or  not. 

The  San  Jose  (Cal.)  Daily  Mercury  published,  April 
26,  1870,  an  imaginary  interview  with  James  Lick,  the 
millionnaire.  Mr.  Lick  is  represented  as  giving  an 
account  of  his  life.  He  relates  his  visit  to  San  Fran- 
cisco when  it  was  a  little  Mexican  hamlet,  and  tells  how 
he  loaned  $100  to  a  Yankee  trader  named  Jones,  who 
gave  as  security  a  considerable  amount  of  land  in  the 
vicinity.     Mr.  Lick  is  supposed  to  continue  :  — 

"  A  few  days  afterward  I  took  a  trip  clown  the  coast,  and 
when  I  returned  Jones  was  —  will  you  believe  he  could  have 
done  so  dishonorable  a  thing?  —  dead.  Yes,  he  had  died 
in  less  than  ten  days  from  the  time  he  first  got  his  digits  on 
my  hundred  dollars,  without  ever  even  hinting  to  me  that 
he  was  on  the  eve  of  doing  such  a  thing.  But  you  can't 
trust  some  people.  I  immediately  saw  that  I  had  been 
played,  and  that  mercilessly.  The  next  thing  was  to  sell 
the  various  sandhills,  which,  by  force  of  circumstances  and 
against  my  will,  had  become  mine.  But  it  was  impossible  to 
dispose  of  them.  .  .  .  Imagine  my  surprise  when  one  morn- 
ing a  genteel-looking  man,  who  evidently  had  money,  came 


THE  CIVIL   ACTION   OF  LIBEL.  43 

to  where  I  was  employed,  and  after  asking  me  if  I  was  the 
owner  of  a  certain  piece  of  property,  coolly  offered  me  fifty 
thousand  dollars  for  it.  I  could  hardly  believe  my  ears  ; 
so  inquired  around,  and  found  that  I  had  been  asleep  to 
what  had  been  going  on  for  some  months,  as  concerned 
real  estate,  and  that  property  had  advanced  a  thousand-fold 
in  value  in  a  very  short  time.  So  you  see,  by  good  manage- 
ment and  great  business  tact,  I  possessed  the  wealth  which 
to  you  seems  so  vast,  but  which  to  me  appears  insignificant 
in  comparison  with  what  enterprise,  such  as  I  have  exhib- 
ited, should  have  secured." 

Learning  that  Mr.  Lick  was  offended  by  the  publica- 
tion, the  editor  of  the  Mercury  published  a  disclaimer 
of  any  intention  of  giving  offence,  but  Mr.  Lick  brought 
suit  for  $1,000  damages.  The  District  Court  held  that 
"inasmuch  as  the  presumption  of  malice  was  fully 
rebutted,  and  there  was  no  proof  of  special  damage,  it 
was  the  duty  of  the  jury  to  find  a  verdict  for  the  defend- 
ants." The  Supreme  Court,  however,  held  that  "if  a 
publication  be  libellous,  and  not  privileged,  the  law 
implies  that  it  was  malicious.  This  is  not  a  mere  pre- 
sumption, which  may  be  wholly  overcome  by  proof,  but 
it  is  a  legal  conclusion,  which  cannot  be  rebutted."  1 
A  new  trial  was  accordingly  granted. 

Malice  may  in  most  States  be  shown  by  other  publi- 
cations of  the  same  tenor  in  the  same  paper,  whether 
made  before  or  after  the  publication  upon  which  suit  is 
based.2  It  has  sometimes  even  been  held  that  evidence 
of  such  publications  made  by  the  defendant  after  the 
commencement  of  the  action  may  be  admitted  for  the 
same  purpose.  But  when  other  publications  than  that 
upon  which  suit  is  based  are  introduced  in  evidence  to 

1  James  Lick  v.  John  J.  Owen  et  al.,  47  Cal.  252. 

2  Edwin  Gribble  v.  Pioneer  Press  Co.,  34  Minn.  (1885),  342. 


44  NEWSPAPER   LIBEL. 

show  malice,  the  jury  should  be  cautioned  by  the  Court 
not  to  award  any  damages  on  account  of  them,  for 
they  may  be  the  subject  of  a  separate  action. 

If  the  language  of  the  alleged  libel  is  exaggerated 
or  intemperate,  this  fact  is  evidence  of  malice.  False- 
hood will  not  alone  show  malice,  but  if  it  appears  that 
the  writer  or  publisher  knew  that  the  matter  was  false, 
actual  malice  will  be  presumed.  It  has  been  held  in 
New  York  that  the  refusal  of  the  editor  to  publish  a 
retraction  does  not  tend  to  show  malice  or  to  enhance 
the  damages  as  against  the  publisher.1  In  New  Hamp- 
shire, where  the  Manchester  Union  charged  one  Barnes 
with  being  a  thief,  and  the  editor  refused  to  publish, 
except  as  a  paid  advertisement,  a  card  signed  by  two 
men,  expressing  their  belief  in  Barnes'  innocence,  it 
was  held  that  the  refusal  to  publish  the  card  gratuitously 
tended  to  show  malice.2  Malice  may  be  shown  by 
the  defendant's  conversation.3  It  has  also  been  held 
in  some  cases  where  the  defendant  undertakes  to  show 
the  truth  of  the  libel,  and  fails  in  his  proof,  that  there 
is  evidence  of  malice  in  the  publication  of  the  libel ; 
but  by  statute  in  Massachusetts,  Illinois,  Michigan, 
Wisconsin,  and  Iowa,  and  perhaps  in  some  other  States, 
an  unsustained  allegation  of  truth  is  not  of  itself  proof 
of  malice. 

As  has  been  already  stated,  actual  malice  never 
becomes  essential  to  the  support  of  the  action  except 
when  the  defendant  claims  that  the  alleged  libel  was  a 
privileged  publication.     The  existence  of  actual  malice 

1  Isaac  W.  Edsall  v.  James  Brooks  ct  al.  (New  York  Evening  Express),  2 
Robertson  (1864),  414;  33  Howard's  Practice  Reports  (1866),  191. 

2  Barnes  v.  Campbell  ct  al.,  60  N.  H.  (1880),  27. 

•;  I..  E.  Knapp  v.  W.  I.  Fuller  ct  al.  {Addison  County  Journal),  55  Vt. 
(1883),  311. 


THE   CIVIL   ACTION   OF  LIBEL.  4r 

may,  however,  be  shown  for  the  purpose  of  enhancing 
the  damages,  as  may  also  the  absence  of  actual  malice 
in  mitigation  of  damages.1  It  was  accordingly  held 
in  a  case  in  Michigan  that  where  the  proprietors  of  a 
newspaper  had  acted  with  prudence  in  the  selection  of 
editors  and  other  employees,  they  could  not  be  com- 
pelled to  pay  punitive  damages  upon  the  publication 
of  libellous  matter  by  such  employees.9  In  a  more 
recent  case  in  the  same  State  the  converse  of  this  prop- 
osition was  maintained.  The  Detroit  Evening  News 
published  the  bill  of  complaint  in  certain  divorce  pro- 
ceedings, .in  which  Judge  Reilly  was  named  as  impli- 
cated in  a  charge  of  adultery.  In  connection  with  the 
report  were  published  comments  upon  the  case,  unfa- 
vorable to  Judge  Reilly,  which  were  inspired  by  politi- 
cal hostility.  The  Court  ruled  that  where  the  pro- 
prietor of  a  newspaper  has  retained  employees  who 
ought  not  to  have  been  kept,  he  is  liable  in  punitive 
damages  if,  through  the  recklessness  or  malice  of  such 
employees,  a  libel  has  been  published.3  In  every  case 
a  party  who  has  been  actuated  in  making  the  publica- 
tion by  actual  malice  is  himself  subject  to  punitive  or 
exemplary  damages,  so  called. 

A  publication  is  not  deemed  libellous  unless  it  is 
directed  against  some  particular  individual  or  individ- 
uals. Defamation  against  mankind  in  general,  or 
against  an  entire  order  or  large  class  of  men,  is  not 
actionable.  Thus,  Paul  in  his  epistle  to  Titus  stated  : 
"One    of  themselves,   even    a   prophet   of   their   own, 

1  Dewitt  C.  I.ittlejohn  v.  HoraceCreeley  (New  Vork  Tribune),  13  Abbotts' 
Practice  Reports  (1861),  41. 

2  Donald  McArthur  v.  Detroit  Daily  Post  Co.,  and  Daily  Free  Press  Co., 
16  Mich.  (1868),  447- 

3  Cornelius  J.  Reilly  v.  James  E.  Scripps,  38  Mich.  (1878),  10. 

3* 


46  NEWSPAPER   LIBEL. 

said,  The  Cretians  are  always  liars.  .  .  .  This  witness 
is  true."1  This  charge  of  falsehood  would  not,  how- 
ever, give  a  right  of  action  to  any  individual  inhabi- 
tant of  Crete  ;  but  where  the  editor  of  the  New  York 
Commercial  Advertiser  preferred  a  charge  of  falsehood 
against  James  Fenimore  Cooper  in  a  review  of 
Cooper's  "  Naval  History  of  the  United  States,"  an 
action  for  libel  was  maintained,  for  in  the  latter  case 
an  individual  was  singled  out  as  the  object  of  the 
charge.2 

The  plaintiff  must  show  that  the  libellous  matter 
refers  to  him.  The  New  York  Herald  published,  May 
13,  1877,  strictures  upon  an  establishment  carried  on 
by  Gaff,  Fleischmann  &  Co.,  in  Queen's  County,  denom- 
inating it  a  "  swill  milk  "  establishment.  Louis  Fleisch- 
mann was  not  named  or  described  in  the  article,  but 
he  brought  suit  against  the  proprietor  of  the  Herald, 
denying  in  his  complaint  that  he  had  ever  been  a 
copartner  in  any  business  such  as  that  described  in  the 
libellous  article,  but  alleging  that  the  article  was  a  libel 
upon  him.  The  Court  held  that  he  had  no  right  of 
action  ;  that  it  appeared  from  the  complaint  itself  that 
the  libel  was  not  published,  of  him.  "  It  is  as  if  the 
plaintiff  should  say,  the  defendant,  intending  a  libel  on 
him,  published  a  libellous  article  concerning  another."3 

Defamatory  matter  may,  however,  be  the  subject  of 
an  action  where  the  object  of  the  writer's  attack  is  not 
named.     The  following  somewhat  ambiguous  advertise- 

1  Titus  i.  12,  13. 

2  "  It  charges  the  plaintiff  with  falsehood,  an  imputation  which,  when  pub- 
lished in  a  written  or  printed  form,  has  been  holden  libellous  ever  since  Austin  v. 
Culpeper  was  decided"  (in  the  reign  of  Charles  II.).  —  Cooper  v.  Stone,  24 
Wendell  (N.  Y.  1840),  441. 

s  Fleischmann  v.  Bennett,  30  N.  Y.  Supreme  Court  Reports,  200;  87  Court  of 
Appeals  Reports,  231. 


THE  CIVIL  ACTION   OF   LIBEL.  47 

ment  was  published  in  the   "  Personal "  column  of  the 
New  York  Herald,  November  19,  1876  :  — 

The  black-mailing  crowd  in  West  Twenty-fifth  Street  had 
better  beware,  cautious  51  and  53. 

Phcebe  Robertson  brought  suit  for  $10,000  damages, 
and  showed  that  she  kept  a  boarding  house  at  51  and  53 
West  Twenty-fifth  Street,  New  York,  claiming  that  the 
advertisement  had  injured  her  custom.  She  recovered 
a  verdict  for  the  full  amount  claimed  ;  but  a  new  trial 
having  been  granted  on  account  of  the  wrongful  admis- 
sion of  evidence,  the  case  was  settled  out  of  court,  by 
the  payment  of  a  comparatively  small  sum,  without  a 
second  trial.  The  Court  held,  however,  that  the  lan- 
guage was  libellous /<?/-  se,  and  that  the  verdict  was  not 
necessarily  excessive.1 

In  the  Fireman 's  Journal,  September  4,  1880,  was 
published  the  following  paragraph  :  — 

New  York  Department.  —  .  .  .  The  entire  staff  of 
harness  makers  of  the  department,  being  three  in  number, 
have  been  dismissed  for  alleged  thefts  of  leather  belonging 
to  the  department.  The  rascals  ought  to  feel  thankful  for 
getting  off  without  more  severe  punishment. 

William  H.  Dwyer,  John  B.  Ryer,  and  another,  har- 
ness makers,  had  just  been  discharged  from  the  depart- 
ment. It  was  held  by  the  Court  of  Common  Pleas,  in 
the  suits  of  Dwyer  and  Ryer  against  the  Fireman's 
Journal  Company,  that  the  words  complained  of  con- 
stituted a  charge  of  theft,  and  that  they  referred  to 
the  plaintiffs  with  sufficient  distinctness  to  sustain  an 
action.2 

Where  the  libel  is  published  without  giving  names, 

1  Robertson  v.  Bennett,  44  N.  Y.  Superior  Court  Reports,  66. 

2  11  Daly,  248,  251. 


48  NEWSPAPER   LIBEL. 

the  plaintiff  is  allowed  considerable  latitude  to  prove 
that  he  was  intended  as  the  object  of  attack.     Parties, 
however,  often  err  in  displaying  too  great  readiness  to 
apply  defamatory  language  to  themselves.    If  the  charge 
is  that  some  one,  not  named,  has  been  guilty  of  larceny, 
it  is  as  if  the  plaintiff  should  cry  out,  "I  am  a  thief; 
therefore  the  writer  means  me  !  "     But  it  is  not  neces- 
sary that  the  libel  should  be  published  in  the  English 
language,  or  that  all  the  world  should  understand  what 
person  the  writer  had  in  mind;  it  is  enough  if  the  plain- 
tiff's friends  and  acquaintances  know  that  the  libel  was 
directed  at  him.     Wong  Chin  Fou,  editor  of  the  Chinese 
American,  in  his  paper,  June  14,  1883,  accused  Chin  Fou 
Tip  of  having  twice  conspired  with  others  to  take  the 
editor's  life  and  having  twice  attempted  it,  and  alluded 
to  him  as  a  cut-throat,  a  sneak  thief,  and  a  member  of 
the  Young  Men's  Christian  Association.     Chin  Fou  Tip 
was   further  charged  with  using   the   influence  of  the 
Young  Men's  Christian  Association  to  obtain  employ- 
ment, and  then  stealing  from  his  employer  $3,000  worth 
of  merchandise,  in    company  with    another   man,  and 
finally  robbing  his  partner  in  crime  of  his  share  of  the 
booty.     Chin  Fou  Tip  asserted  that  in  consequence  of 
the  libel  his  friends  deserted  him,  he  lost  an  appoint- 
ment  promised  him  by  the   Chinese   consul,   and   his 
health  was  seriously  affected,  but  he  was  not  required 
to  allege  that  all  the  inhabitants  of  New  York  had  read 
or  could  read  the  charges  contained  in  the  offending 
newspaper.     He  received  a  verdict  for  $1,000  in  the 
Supreme  Court.1      In  another  case  in  New  York  the 
editor  of  the  Albany  Register  was  sued  for  publishing 
the  following  in  his  paper,  December  5,  1809  :  — 

1  See  the  New  York  Times  for  March  4,  1885. 


THE  CIVIL  ACTION   OF   LIBEL.  4g 

Affidavits.  —  Our  army  swore  terribly  in  Flanders,  said 
Uncle  Toby ;  and  if  Toby  was  here  now  he  might  say  the 
same  of  some  modern  swearers.  The  man  at  the  sign  of 
the  Bible  is  no  slouch  at  swearing  to  an  old  story. 

The  Court  held  that  the  plaintiff  might  prove  that 
he  kept  a  bookstore,  at  which  a  Bible  was  the  sign,  and 
that  he  was  intended  in  the  paragraph  complained  of. 
It  was  also  held  that  the  language  was  libellous.1 

Where  the  plaintiff  is  neither  named  nor  specifically 
described,  the  action  can  still  be  maintained  if  he  can 
show  that  he  is  included  in  a  class  of  persons  who  are 
libelled  under  a  general  description.  Thus  where  it 
is  asserted  that  at  all  the  malt  houses  "  on  the  hill " 
in  Albany,  water  taken  from  stagnant  pools  contain- 
ing the  putrid  bodies  of  dead  animals  is  used  in  the 
manufacture  of  beer,  each  of  the  brewers  whose  malt 
houses  are  "on  the  hill"  b.as  a  right  of  action  for  the 
defamation.-  But  it  has  been  held  in  another  case  in 
New  York  that  where  the  libel  is  directed  against  the 
members  of  an  association  who  have  no  common  pecun- 
iary interests  wherein  they  could  sustain  damage,  the 
members  cannot  jointly  maintain  an  action.  In  this 
case  the  libel  was  upon  the  members  of  a  volunteer 
hose  company,  who  served  without  compensation.  The 
ground  of  the  action  was  the  following  paragraph,  pub- 
lished in  the  New  York  Sun :  — 

Firemen.  —  A  singular  case  of remorse  of conscience. — 
One  cent  reward  for  tJie  thieves.  —  A  few  days  since  a  hat 
was  stolen  from  me  by  some  of  the  members  of  12  Hose 
Company,  and  not  being  much  in  need  of  it,  I  had  relin- 
quished all  claims  to  it,  when,  lo  and  behold,  it  appeared 
hung  up  in  front  of  23's  hose  carriage  house,  filled  with  the 

1  Steele  v.  Southwick,  9  Johnson,  214. 

2  Ryckman  v.  Delavan,  25  Wendell  (N.  Y.  Court  of  Errors,  1840),  186. 


5° 


NEWSPAPER   LIBEL. 


brains  of  the  penitent  thieves,  they  having  nothing  further 
to  offer  in  atonement  for  the  crime.  I  forgive  them  the 
offence,  and  advise  them  to  call  and  take  them  away,  as  I 
apprehend  from  their  subsequent  acts  that  they  now  fully 
realize  their  loss.  Joseph  W.  Stagg. 

All  the  members  of  the  company,  against  some  of 
whose  members  the  larceny  was  charged,  joined  as 
plaintiffs,  but  the  Court  of  Common  Pleas  held  that 
they  had  no  right  of  action.1 

Shortly  before  the  close  of  the  War  of  1812,  the 
Albany  Argus  published  a  charge  that  the  men  in  a 
certain  New  York  regiment,  by  advice  of  their  officers 
refused  to  muster  for  service  when  ordered  to  do  so  by 
the  governor.  An  ensign  in  the  regiment  thereupon 
brought  suit  against  the  editor,  but  the  Court  held  that 
a  civil  action  could  not  be  maintained  by  an  officer  of 
a  regiment  for  a  publication  reflecting  on  the  officers 
generally,  unless  he  should  show  that  he  had  suffered 
some  special  damage  as  a  result  of  the  publication. 
".The  offender,  in  such  case,"  said  the  Court,  "does 
not  go  without  punishment.  The  law  has  provided  a 
fit  and  proper  remedy,  by  indictment."  2 

On  the  other  hand,  it  was  held  in  Colorado  that  a 
member  of  a  jury  might  maintain  an  action  for  a  libel 
directed  against  the  jury  as  a  body.  The  Denver 
Rocky  Mountain  News  published  the  following  regard- 
ing the  acquittal  of  a  prisoner  charged  with  robbery  :  — 

We  are  not  a  little  surprised  at  Judge  Wells'  lenient 
charge  in  the  case.  We  are  still  more  so  at  the  infamous 
verdict  of  the  jury.  .  .  .  We  cannot  express  the  contempt 
which    should    be    felt    for   these    twelve    men,    who   have 

'  John  F.  Giraud  ei  al.  v.  Moses  S.  Beach  ct  al.,  3  E.  D.  Smith  (1854),  337. 
2  Sumner  v.  Buel,  12  Johnson,  478. 


THE  CIVIL  ACTION   OF   LIBEL. 


51 


thus  not  only  offended  public  opinion,  but  have  done  in- 
justice to  their  oaths. 

A  member  of  the  jury  in  the  robbery  case  brought 
suit  for  libel  against  the  editor  of  the  News,  and  was 
awarded  a  verdict  of  one  cent.  The  editor  carried  the 
case  before  the  Supreme  Court  of  the  Territory  on  a 
writ  of  error,  but  the  judgment  was  affirmed.1 

A  corporation  can  recover  damages  for  a  libel  pre- 
cisely as  an  individual.2  As  has  been  already  seen,  a 
corporation  can  also  be  required  to  pay  damages  for 
libels  contained  in  a  newspaper  which  the  corporation 
publishes.3 

If  loss  of  reputation  or  pecuniary  loss  is  not  a  neces- 
sary consequence  or  a  natural  and  proximate  result 
of  the  publication,  the  action  cannot  be  maintained.4 
Thus  it  has  been  held  that  where  the  alleged  libel 
resulted  in  mental  distress,  causing  sickness  and  conse-' 
quent  pecuniary  loss,  the  words  not  being  libellous  per 
se,  the  plaintiff  could  not  recover  damages ;  in  other 
words,  loss  caused  by  mental  distress  is  not  a  "  natural 
and  proximate  result  "  of  the  publication.  So  also 
where  the  defendant's  publication  caused  a  singer  to 
break  an  engagement  to  sing  in  oratorio,  for  fear  of 
being  hissed,  Lord  Kenyon  held  that  the  damage  was 
too  remote  to  sustain  an  action  brought  by  the  mana- 
ger of  the  oratorio.5 

A  novel  case,  involving  a  similar  question,  was  decided 

1  Martin  v.  Byers,  2  Col.  (1875),  605. 

2  Shoe  and  Leather  Bank  v.  Thompson  ( Thompson's  Bank  Note  and  < 
mercial  Reporter),  18  Abbotts'  Practice  Reports  (N.  Y.  1865),  413;   Trenton 
Mutual  Life  and  Fire  Insurance   Company  v.  Lewis  Perrine  (Weekly   Trcn- 
tonian),  3  Zabriskie  (N.  J.  1852),  402. 

3  McArthur  v.  Detroit  Daily  Post  Co.  et  al.,    16  Mich.  (1868),  447. 

4  See  Chap.  VI.  on  Language  which  is  Libellous. 

5  Ashley  v.  Harrison,  1  'Espinasse  (Eng.  1793),  48. 


52 


NEWSPAPER   LIBEL. 


by  the  Supreme  Court  of  Minnesota  in  January,  1885. 
Joseph  R.  Hoflin  published  in  the  St.  Paul  and  Minne- 
apolis Advertiser  the  following  item  :  — 

Wanted  — E.  B.  Zier,  M.  D.,  to  pay  a  drug  bill. 

It  was  published  in  a  part  of  the  newspaper  with 
the  heading,  "  Wanted,"  and  among  other  similarly 
suggestive  items,  of  which  the  following  is  a  specimen  : 

"  Wanted to    pay   his    room    rent,    and    not    go 

dead-heading  his  way."  It  appeared  in  evidence 
that  a  copy  of  this  "  want "  was  affixed  to  a 
postal  card,  and  sent  to  a  young  woman  to  whom 
Dr.  Zier  was  engaged  to  be  married.  The  Court 
held  that  the  words  were  not  libellous  on  their 
face,  but  that  they  might  become  so  from  the  circum- 
stances under  which  they  were  published,  and  that  this 
was  a  question  for  the  jury.  It  was  further  held  that 
if  the  words  were  found  libellous,  and  if  the  sending  of 
the  item  to  the  doctor's  sweetheart  was  a  natural  con- 
sequence of  its  publication,  then  the  defendant  was 
liable,  but  that  the  latter  question  was  also  to  be  sub- 
mitted to  the  jury.1  Judgment  for  the  plaintiff  in  the 
court  below  was  affirmed.  A  verdict  in  the  sum  of 
$1,500  was  held  not  to  be  excessive. 

Having  considered  who  may  be  plaintiffs  in  libel 
proceedings,  the  question  is  a  natural  one  who  may  be 
defendants.  This  question  may  be  answered  generally 
by  stating  that  any  person  who  participates  in  any 
manner  in  the  publication  of  the  libel  is  responsible  for 
the  damages  it  causes.  This  responsibility  extends  to 
the  author,  the  printer,  and  the  distributor.  Liability, 
both   civil    and   criminal,    attaches    thus  to   the   writer, 

1  Zier  v.  Hoflin,  21  Northwestern  Reporter,  862;  33  Minn.  66. 


THE  CIVIL  ACTION   OF  LIBEL. 


53 


whether  he  be  a  reporter,  a  telegraphic  correspondent, 
an  editorial  writer,  or  a  stranger.  It  attaches  also  to 
one  who  writes  down  the  libellous  matter  from  the  dic- 
tation of  the  author  ;  to  the  editor,  provided  the  matter 
was  actually  or  constructively  under  his  supervision  ;  to 
the  printer,  including  the  compositor,  stereotyper,  and 
pressman  ;  to  the  proprietor  of  the  newspaper,  even 
though  he  were  absent  or  ignorant  of  the  fact  or  nature 
of  the  publication;  to  the  news  agent;  to  the  carrier 
who  delivers  the  papers  at  the  residences  of  sub- 
scribers ;  and  to  any  other  person  who,  knowing  its 
character,  sells,  gives  away,  or  lends  a  copy  of  the  libel, 
or  who  merely  reads  the  defamatory  matter  to  another. 
In  the  case  of  the  writer,  he  is  conclusively  presumed 
to  know  the  actionable  quality  of  the  copy  which  lie 
prepares.  The  editor  and  proprietor,  too,  are  not 
allowed  to  plead  in  defence  that  they  were  not  aware  of 
the  defamatory  nature  of  the  publication,  or  that  the 
matter  was  published  without  their  knowledge  or 
against  their  orders.  On  the  other  hand,  the  composi- 
tor may  show  in  defence  that  the  copy  was  given  to  him 
in  such  "  takes  "  that  he  could  not  know  its  general 
character  ;  while  the  stereotyper,  pressman,  and  car- 
rier may  avoid  responsibility  by  proving  that  they  per- 
formed their  duties  without  being  aware  that  the 
newspaper  contained  libellous  matter.  In  the  latter 
cases,  however,  the  burden  of  proof  is  on  the  defend- 
ants to  show  that  they  did  not  wilfully  aid  in  publishing 
or  circulating  the  libel.  A  government  letter  carrier 
would  in  no  case  be  liable,  for  it  is  a  part  of  his  duty 
not  to  know  the  contents  of  the  letters  and  newspapers 
which  he  carries.1 

1  See  Townshend  on   Slander  and  Libel,  pp.  157,  166-168;   Odgers  on  Libel 
and  Slander,  pp.  156-160,  359,  384.     See  also  Chap.  V.  on  Publication. 


54 


NEWSPAPER   LIBEL. 


The  writing  and  printing  of  a  libel  do  not  together 
necessarily  amount  to  a  publication,  and  until  the 
defamatory  matter  reaches  the  hands  of  some  person 
other  than  the  original  author,  and  the  person  whose 
character  is  the  object  of  attack,  it  cannot  be  said  to  be 
published.  When,  finally,  the  libel  is  brought  under 
the  notice  of  some  third  person,  then  the  act  of  the 
writer,  the  printer,  the  proprietor,  the  dealer,  and  the 
gratuitous  circulator,  each  becomes  an  act  of  publication, 
which  renders  each  party  liable  for  the  resulting  dam- 
ages. Abe  Woody,  a  deputy  United  States  marshal, 
was  indicted  in  Texas  for  reading  to  others  and  exhib- 
iting, October  5,  1882,  copies  of  the  Grand  Army  Jour- 
nal, published  in  Washington,  containing  the  following 
article  :  — 

Texas.  —  Ex-Governor  Davis,  and  his  pliant  Burch,  the 
indicted  mail  thief,  who  ought  to  have  been  sent  to  the  peni- 
tentiary,  but  who  escaped  by  victimizing  his  unsophisticated 
youthful  fellow  clerk. —  The  scoundrel  now  in  this  city 
brazenly  seeking  to  retain  his  wife  in  a  Federal  office  in 
Texas,  by  defamitig  the  character  of  certain  Republican  gen- 
tlemen of  the  highest  standing  and  reputation.  — There  is 
in  this  city  from  Fort  Worth,  Texas,  an  individual  who, 
although  he  claims  to  have  served  in  the  army  of  the 
Union,  is  nevertheless  a  disgrace  to  any  decent  community, 
and  whose  brazen  impudence  is  equalled  only  by  the  infamy 
of  his  unpunished  mail  thefts  while  serving  Uncle  Sam  in 
the  capacity  of  a  clerk  in  a  Texas  post  office.  We  write 
this  notice  of  the  fellow  with  a  view  to  enlightening  First 
Assistant  P.  M.  General  Hon.  Frank  Hatton,  and  the  de- 
partment generally,  upon  the  true  status  of  this  penitentiary- 
deserving  mail  robber  of  registered  money  packages.  .  .  . 

The  Court  held  the  article  to  be  libellous  per  se, 
and  also  ruled  that  the   exhibition   of  copies  of  a  libel- 


THE  CIVIL   ACTION  OF   LIBEL.  55 

lous  publication  is  sufficient  to  sustain  an  indictment 
for  publishing  the  libel.  Woody  was  convicted  and 
fined  $250.! 

One  who  uses  defamatory  language  orally  is  also 
liable  as  a  publisher  of  a  libel,  if  the  language  is  used 
under  such  circumstances  as  would  naturally  result  in 
their  publication  in  printed  form.  Thus,  where  a 
speaker  at  a  public  meeting,  at  which  reporters  are 
present,  uses  defamatory  language,  he,  as  well  as  the 
reporter,  printer,  publisher,  and  dealer,  is  liable  for  the 
subsequent  publication  of  the  speech  or  any  part  of  it. 
So  also  in  the  case  of  an  interview  containing  slander- 
ous reflections  upon  another.2 

A  telegraph  company  assumes  the  same  responsibil- 
ity for  defamatory  language  contained  in  a  news  de- 
spatch which  is  borne  by  the  writer  and  publisher.  The 
following  despatch  was  sent  from  Halifax  to  the  St. 
John  Daily  Telegraph,  over  the  wires  of  the  Dominion 
Telegraph  Company  :  — 

Halifax,  Jan.  6,  [1879.]  — John  Silver  &  Co.,  wholesale 
clothiers,  of  Granville  Street,  have  failed;  liabilities  heavy. 

The  clothing  firm  sued  the  telegraph  company  for 
libel,  and  recovered  a  verdict  for  $7,000.  Upon  an 
appeal,  Chief  Justice  Ritchie,  of  the  Supreme  Court  of 
Canada,  said  :  "  In  the  transmission  of  messages  for 
publication,  especially  letters  and  news  for  the  public 
newspapers,  it  would  seem  that  telegraph  companies 
assume  a  responsibility  similar  to  that  of  publishers." 
In  this  case  it   was  assumed    that   the    company   had 

1  The  State  v.  Woody,  16  Texas  Court  of  Appeals  Reports,  252. 

2  See  the  case  of  the  People  y.  Clay,  cited  in  Chap.  V.  on  Publication. 
Wheaton  v.  Beecher  (Detroit  Evening  News,  March  17,  1886),  33  Northwestern 
Reporter,  503. 


56  NEWSPAPER   LIBEL. 

written  as  well  as  forwarded  the  despatch,  but  the  Court 
was  of  opinion  that  if  the  despatch  had  been  written 
and  ordered  sent  by  a  third  party,  it  would  at  most 
only  have  affected  the  amount  of  damages  in  a  suit 
against  the  telegraph  company.  A  new  trial  was, 
however,  granted  on  the  ground  that  the  verdict  was 
excessive  in  amount.1 

The  person  who  has  been  libelled  may  sue  one  or 
all  of  those  responsible  for  the  publication,  either 
jointly  or  separately.  It  is  no  defence  in  an  action 
against  the  publisher  of  a  newspaper  in  which  a  libel 
has  appeared,  to  show  that  a  verdict  against  the  author 
of  the  same  libel  has  been  recovered  and  paid,  nor 
vice  versa.  A  defendant  against  whom  damages  have 
been  recovered  cannot  compel  another  person,  who 
might  have  been  sued  jointly  with  him,  but  who  was 
not  sued  to  pay  any  share  of  the  damages;  for  it  is-  a 
legal  maxim  that  "there  is  no  contribution  among 
wrong-doers."  Thus,  if  the  proprietor  of  a  newspaper 
is  compelled  to  pay  a  verdict  on  account  of  the  negli- 
gent or  malicious  act  of  an  editor,  he  cannot  compel 
the  editor  to  reimburse  him  for  his  loss;  likewise,  if  a 
reporter  suffers  fine  and  imprisonment  for  something 
which  he  has  written  under  the  orders  of  his  city  editor 
or  managing  editor,  he  is  without  redress.  Further- 
more, the  printer  or  publisher  of  a  libel  cannot  recover 
the  contract  price  for  printing  a  libel ;  nor  can  an 
action  be  maintained  for  the  breach  of  a  contract  to 
furnish  manuscript  of  defamatory  matter,  nor  for  pirat- 
ing a  libellous  publication.2 

1  Silver  ct  al.  z>.  Dominion  Telegraph  Co.,  10  Canada  Supreme  Court 
Reports,  238. 

2Townslicnd  on  Slander  and  Libel,  p.  550,  note. 


THE  CIVIL   ACTION   OF   LIBEL.  57 

The  plant  of  the  Manistee,  Mich.,  Times  was  mort- 
gaged to  Smith  W.  Fowler  to  secure  the  fulfilment  of  a 
certain  agreement.  Under  this  agreement,  Mr.  Fowler 
was  given  the  use  of  one-half  column  of  space  in  the 
paper  for  five  years  for  advertising  and  reading  matter, 
and  the  mortgagors  agreed  that  the  columns  of  the  Times 
should  not  be  used  to  publish  matter  detrimental  to 
him.  Mr.  Fowler  sent  two  items  for  publication  in  his 
half-column,  in  one  of  which  he  asserted  that  at  a  pub- 
lic meeting  the  publisher  of  the  Times  was  pronounced 
unworthy  the  confidence  or  esteem  of  the  people.  Mr. 
Fowler  claimed  that  the  editor  refused  to  publish  these 
items,  and  he  also  claimed  that  several  articles  disre- 
spectful to  him  had  been  published  in  the  paper.  For 
these  violations  of  the  agreement  he  sought  to  foreclose 
the  mortgage,  which  had  meanwhile  been  assigned  to 
Richard  Hoffman.  The  Court  held  that  Mr.  Fowler 
"  had  no  right  to  require  that  the  publisher  of  the 
Times  should  admit  to  its  columns  an  article  reflecting 
upon  himself.  ...  It  is  immaterial  that  Fowler  had 
previously  been  badly  treated  by  the  paper."  The 
agreement  was  held  to  be  too  vague  to  be  enforced.1 

Hiram  Atkins,  editor  of  the  Montpelier,  Vt.,  Argus 
and  Patriot,  has  given  to  the  world  more  interesting 
libel  cases  than  all  the  other  newspaper  men  who  ever 
lived  in  that  State.  One  day  in  the  summer  of  1867 
he  received  a  call  from  James  N.  Johnson.  Mr.  John- 
son's errand  was  to  secure  the  publication  in  the  Argus 
and  Patriot  of  the  following  article  :  — 

A  Jack  at  All  Trades  Exposed.  —  A  certain  would-be 
prominent  individual  living  in  this  county,  who    holds   the 

1  Fowler  v.  Hoffman,  31  Mich.  (1875),  216. 


58 


NEWSPAPER   LIBEL. 


office  of  assistant  assessor,  and  who  has  acted  in  almost 
every  capacity  within  the  last  twenty  years,  from  a  professed 
minister  of  the  gospel  to  swindling  his  fellow-men  out  of 
their  honest  dues  by  thousands,  deserves  to  have  some  feat- 
ures of  his  dark  and  hypocritical  character  portrayed  to 
the  public  as  they  really  are.  His  form,  which  is  of  the 
Newfoundland  dog  type,  with  a  sonorous  voice  conceals 
from  the  public  gaze  somewhat  as  empty  a  head  and  as  false 
a  heart  as  can  be  found  in  a  lifetime,  even  in  this  corrupt 
generation  of  radical  politicians  and  wolves  in  sheep's  cloth- 
ing, who  profess  to  be  ministers  of  Christ.  This  pseudo 
minister,  radical  politician  and  federal  tax-eater,  has  this 
year  been  chosen  president  of  the  Vermont  Agricultural 
Society,  a  position  he  must  have  crawled  into  by  hypocrisy 
and  deceit,  for  the  society  would  not  have  so  disgraced  the 
State  had  they  known  what  they  were  doing.  ...  By  means 
of  singeing  and  curling  the  short  wool  with  lighted  paper, 
and  then  coloring  it  thoroughly  with  lamp-black  and  some 
other  ingredients,  known  only  to  the  initiated,  a  reddish  cast 
was  given  to  the  sheep,  almost  exactly  like  the  genuine 
Merino,  and  they  were  exported  and  sold  as  such  by  the  rev- 
erend gentleman  as  a  legitimate  business.  .  .  . 

Mr.  Atkins  read  the  article  through,  and  although  no 
names  were  used,  he  was  aware  that  it  was  intended  as 
a  biography  of  the  Rev.  John  Gregory.  He  suspected, 
however,  that  some  portions  of  the  article  might  be 
deemed  libellous,  and  informed  Mr.  Johnson  that  he 
could  only  publish  the  matter  on  condition  that  the  lat- 
ter, and  a  number  of  other  gentlemen  who  were  inter- 
ested in  the  publication,  should  agree  in  writing  to 
indemnify  the  editor  for  all  damage  which  might  result 
to  him  from  it.  The  agreement  was  drawn  up  and 
signed ;  the  article  was  published  July  25,  1867  ;  Mr. 
Gregory  sued  and  recovered  $1,200  damages  from  Mr. 


THE  CIVIL   ACTION   OF  LIBEL. 


59 


Atkins,1  and  then  Mr.  Johnson  and  his  friends  coolly 
declined  to  make  good  their  written  promise.  The  ed- 
itor brought  suit  to  enforce  the  agreement,  but  learned 
in  the  courts  that  a  promise  designed  to  protect  him 
against  the  consequences  of  his  own  wrong-doing  can- 
not|be  enforced  in  law.2  This  is  under  the  general 
principle  that  indemnity  cannot  be  recovered  by  one 
of  two  joint  wrong-doers  against  the  other.  Book  pub- 
lishers, however,  usually  stipulate  in  their  contracts  with 
authors  that  the  latter  shall  make  good  to  them  any 
loss  or  expense  to  which  they  may  be  put  in  the  event 
of  anything  libellous  being  found  in  the  work  to  be 
published  under  the  contract ;  but  such  portion  of  the 
contract  has  no  legal  effect. 

The  plaintiff  in  libel  actions  is  required  to  sustain 
the  burden  of  proving  that  the  defendant  published  the 
matter  complained  of,  as  well  as  that  he,  the  plaintiff, 
is  the  person  referred  to  in  the  publication.  If  the 
Court  rules  that  the  matter  was  published  on  a  priv- 
ileged occasion,  the  plaintiff  must  also  affirmatively 
show  that  the  defendant  was  actuated  by  express 
malice.  In  cases  where  special  damage  is  material,3 
the  burden  is  on  the  plaintiff  to  show  that  he  has  suf- 
fered such  special  damage.  The  defendant,  on  the 
other  hand,  must  sustain  the  burden  of  proving  that 
the  occasion  was  privileged,4  if  such  is  his  defence,  or 
that  the  publication  is  true,  or  that  the  plaintiff's  claims 
have  been  settled  out  of  court  after  the  publication  of 
the  libel. 

Every  sale   of  a  copy  of  the   newspaper  containing 

1  Gregory  v.  Atkins,  42  Vt.  237. 

2  Atkins  v.  Johnson,  43  Vt.  78. 

3  See  Chap.  VI.  on  Language  which  is  Libellous. 

4  See  Chap.  VII.  on  Privileged  Publications. 


60  NEWSPAPER   LIBEL. 

the  libel  is  a  distinct  publication  of  it,  for  which  the 
defendant  is  liable  in  damages.  The  party  who  has 
been  libelled  has  a  right  to  a  separate  action  for  each 
and  every  such  publication,  but  the  Court  will  generally 
interfere  to  protect  the  defendant  from  unnecessarily 
vexatious  proceedings.  This  will  be  clone  by  requiring 
the  plaintiff  to  consolidate  his  actions. 

In  Arkansas  and  Connecticut  the  action  is  barred  by 
statute  unless  brought  within  three  years  from  the  time 
when  the  cause  of  action  accrues.  The  action  is  sim- 
ilarly barred  in  two  years  in  Dakota,  Florida,  Idaho, 
Indiana,  Iowa,  Maine,  Massachusetts,  Michigan,  Min- 
nesota, Missouri,  Nevada,  New  Hampshire,  New  Jer- 
sey, New  York,  Oregon,  South  Carolina,  Vermont, 
Washington  Territory,  and  Wisconsin.  In  the  remain- 
ing States  and  Territories  the  action  must  be  brought 
within  one  year.  The  "time  when  the  cause  of  action 
accrues "  is  in  general  the  time  when  the  libel  was 
published,  but  the  sale  of  a  single  copy  at  any  time 
after  the  action  shall  have  been  barred  will  revive  the 
cause  of  action  as  to  the  person  so  selling  a  copy.1 
If  the  person  defamed  is  absent  from  the  State  at  the 
time  when  the  libel  is  published,  the  statute  of  limita- 
tions does  not  generally  commence  to  run  until  his 
return  within  the  jurisdiction. 

At  common  law  an  action  for  libel  abates  upon  the 
death  of  either  party.2     If  judgment  is  entered  for  the 

1  Duke  of  Brunswick  v.  Harmer,  14  Adolphus  &  Ellis'  Reports  (Eng.  Queen's 
Bench,  1849),  185.     (See  this  case  cited  at  length  in  Chap.  IX.  on  Defences.) 

2  Struthers  v.  Peacock  et  ah  (Philadelphia  Evening  Bulletin),  11  Phila- 
delphia Reports  (1876),  287.  By  statute  in  several  States,  including  Ohio, 
Maine,  Maryland,  and  Iowa,  the  law  respecting  the  abatement  of  libel  actions 
has  been  modified.  Under  a  recent  English  decision,  an  action  for  slander  of  title 
(see  Chap.  VI.  on  Language  which  is  Libellous)  survives  the  death  of  the 
defendant.     (Hatchard  v.  Mege  et  al.,  18  Queen's  Bench  Division  [1887],  771.) 


THE   CIVIL   ACTION   OF   LIBEL.  61 

plaintiff,  and  the  plaintiff  dies  pending  an  appeal,  his 
representatives  may  be  substituted  without  abatement 
of  the  action  ;  but  if  the  defendant  dies  pending  an 
appeal  from  a  judgment  in  favor  of  the  plaintiff,  the 
judgment  dies  with  him. 


62  NEWSPAPER   LIBEL 


CHAPTER   III. 

CRIMINAL   LIBEL. 

Most  libels  which  are  civilly  actionable  are  indictable 
also  as  crimes.1  Wherever  a  suit  for  damages  on  ac- 
count of  a  libel  may  be  maintained  without  express 
proof  that  the  plaintiff  has  suffered  some  actual  pecun- 
iary loss  on  account  of  the  publication  —  in  other 
words,  wherever  the  language  is  libellous  per  se — the 
libel  may  also  be  the  subject  of  an  indictment.  The 
ground  of  the  criminal  prosecution  in  these  cases  is  the 
tendency  of  the  defamatory  language  to  provoke  a 
breach  of  the  peace,2  but  it  is  equally  a  criminal  libel 
if  no  breach  of  the  peace  actually  takes  place,  or  if  the 
person  libelled  could  not,  on  account  of  physical  infirm- 
ity, resent  an  injury.  In  cases  where  the  plaintiff,  in 
order  to  maintain  a  civil  action  for  libel,  must  show 
that  he  has  suffered  some  special  damage,  as  in  cases 

1  But  a  libel  is  not  an  "  infamous  "  crime  within  the  meaning  of  the  term  as 
used  in  the  New  Vork  Code  of  Civil  Procedure,  limiting  the  jurisdiction  of  the 
Albany  Court  of  Special  Sessions;  that  court  accordingly  has  jurisdiction. 
People  v.  John  Parr  (772?  Owl),  42  Hun  (N.  Y.  Supreme  Court,  1886),  313. 
The  Supreme  Court  of  the  District  of  Columbia  in  the  case  of  the  United  States 
v.  Buell  (1  McArthur,  502),  decided  in  1874  that  libel  was  an  infamous  crime, 
and,  therefore,  beyond  the  jurisdiction  of  the  Police  Court  of  the  District,  but 
in  the  more  recent  case  of  the  United  States  v.  Marshall  (Washington  Law  Re- 
porter, Aug.  17,  1887),  this  decision  is  overruled. 

2  Culpepper,  Va.,  March  1.  —  Edwin  Barbour,  editor  of  the  Piedmont 
Advance,  and  Ellis  B.  Williams,  son  of  George  Williams,  editor  of  the  Culpep- 
per Exponent,  engaged  in  a  shooting  affray  this  morning  as  the  result  of  caus- 
tic editorial  exchanges.  Young  Williams  was  killed,  and  Barbour  very  seriously 
wounded.  — New  York  Morning  Journal,  March  2,1888. 


CRIMINAL   LIBEL.  63 

of  "  slander  of  title,"1  no  indictment  can  be  sustained. 
In  such  cases  a  suit  for  damages  offers  an  adequate 
remedy. 

But  there  is  a  large  class  of  cases  where  publications 
are  punishable  as  crimes,  although  not  civilly  action- 
able. Criminal  libel,  indeed,  was  defined  by  Lord  Camp- 
bell as  "a  publication  which,  in  the  opinion  of  twelve 
honest,  independent,  and  intelligent  men,  is  mischiev- 
ous and  ought  to  be  punished."  Under  this  definition, 
and  under  the  statutes  and  decisions  of  the  courts,  are 
included  seditious,  blasphemous,  and  obscene  libels, 
and  libels  upon  the  dead,  none  of  which  are  actionable 
at  the  suit  of  an  individual.  Mr.  Greenleaf,  in  his 
work  on  Evidence,2  enumerates  the  following  cases  in 
which  libel  is  a  crime  :  — 

"According  to  Russell,3  and  to  the  authorities  to 
which  he  refers,  the  crime  of  libel  is  committed  by  the 
publication  of  writings  blaspheming  the  Supreme 
Being  ;  or  turning  the  doctrines  of  the  Christian  relig- 
ion into  contempt  and  ridicule  ;  or  tending,  by  their 
immodesty,  to  corrupt  the  mind,  and  to  destroy  the 
love  of  decency,  morality,  and  good  order ;  or  wantonly 
to  defame  or  indecorously  to  calumniate  the  economy, 
order,  and  constitution  of  things  which  make  up  the 
general  system  of  the  law  and  government  of  the 
country  ;  to  degrade  the  administration  of  government 
or  of  justice  ;  or  to  cause  animosities  between  our  own 
and  any  foreign  government,  by  personal  abuse  of  its 
sovereign,  its  ambassadors,  or  other  public  ministers  ; 
and  by  malicious  defamations    expressed   in    printing 

1  See  Chap.  VI.  on  Language  which  is  Libellous. 

2  Greenleaf  on  Evidence,  vol.  III.,  §  164. 

3  Russell  on  Crimes,  vol.  I.,  p.  321. 


64  NEWSPAPER   LIBEL. 

or  writing,  or  by  signs  or  pictures,  tending  either  to 
blacken  the  memory  of  one  who  is  dead  or  the  reputa- 
tion of  one  who  is  living,  and  thereby  to  expose  him  to 
public  hatred,  contempt,  and  ridicule.  This  descrip- 
tive catalogue  embraces  all  the  several  species  of  this 
offence  which  are  indictable  at  common  law;  all  of 
which,  it  is  believed,  are  indictable  in  the  United 
States,  either  at  common  law  or  by  virtue  of  particular 
statutes." 

An  additional  class  of  cases  in  the  nature  of  criminal 
libel  is  provided  for  in  New  York  by  section  435  of  the 
Penal  Code.  The  section  provides  that  any  person 
who,  with  intent  to  affect  the  market  price  of  public 
funds,  or  of  stocks,  bonds,  gold  or  silver  coin  or  bull- 
ion, or  any  merchandise  whatever,  "  knowingly  circu- 
lates any  false  statement,  rumor,  or  intelligence,  is 
punishable  by  a  fine  of  not  more  than  five  thousand 
dollars,  or  by  imprisonment  for  not  more  than  three 
years,  or  both."  Under  this  section  of  the  Penal  Code, 
Charles  D.  Keep,  of  the  Wall  Street  Daily  ATews,  was 
arrested  June  2,  1885,  at  the  instance  of  Cyrus  W. 
Field,  for  the  publication  of  a  paragraph  charging  the 
management  of  the  Manhattan  Elevated  Railway  Com- 
pany with  paying  unearned  dividends  on  the  stock  of 
the  company  in  order  to  bull  the  market.  Mr.  Keep 
vainly  endeavored  to  bring  the  case  to  a  trial,  but  the 
proceedings  against  him,  still  hanging  fire  in  the 
New  York  courts,  ended  with  his  death  in  1887. 

The  provision  of  the  New  York  Penal  Code  under 
which  the  prosecution  of  Mr.  Keep  was  conducted  is 
not  peculiar,  except  in  form,  to  the  State  of  New  York. 
Mr.  Townshend  states  the  law  upon  this  subject  in  a 
general  way,  as  follows :    "  As   regards  a  corporation 


CRIMINAL   LIBEL.  65 

engaged  in  manufacturing,  trading,  or  banking,  or  other 
occupation  in  which  credit  may  be  material  to  its  suc- 
cess, there  language  concerning  such  a  corporation  cal- 
culated to  injuriously  affect  its  credit  must  necessarily 
occasion  it  pecuniary  injury,  and  in  such  a  case  an 
action  may  be  maintained  by  the  corporation  without 
proof  of  any  special  damage." 1  Not  only  can  an 
action  for  damages  be  maintained,  but  a  criminal  pros- 
ecution may  be  instituted  by  the  proper  officer  of  the 
corporation  against  the  author  or  publisher  of  the 
libel. 

A  corporation  may  also  be  a  defendant  in  a  prosecu- 
tion for  libel,  precisely  as  in  a  civil  action.  "  It  is  true 
the  corporation  may  not  be  imprisoned,  but  the  fact 
that  the  same  measure  of  punishment  cannot  be  in- 
flicted in  this  way  cannot  vitiate  the  indictment;  the 
judgment  is  of  the  same  character,  that  is,  a  fine  and 
costs."  2 

Malice  on  the  part  of  the  defendant  must  be  shown 
in  order  to  sustain  a  prosecution  for  criminal  libel.  It 
is  not  necessary,  however,  to  show  that  the  defendant 
was  actuated  by  personal  ill-will  or  a  malevolent  dis- 
position ;  it  is  enough  if  it  appears  that  he  wrote  the 
libel  or  took  part  in  publishing  it  without  lawful  excuse. 
The  absence  of  lawful  excuse  constitutes  what  is  termed 
"legal  malice,"  and  this,  in  criminal  as  well  as  in  civil 
cases,  is  sufficient  to  sustain  the  charge  of  libel.3  Un- 
der this  rule  of  law,  Robin  Damon,  editor  and  publisher 
of  the  Salem,  Mass.,  Evening  News,  was  convicted  of 

1  Townshend  on  Slander  and  Libel,  p.  503. 

2  The  State  v.  Nashville  Banner  Publishing  Co.,  3  Lea  (Tenn.  1879),  731. 

3  The  rules  on  the  subject  of  malice  (see  p.  41),  as  well  as  on  the  subject  of 
privileged  publications  (see  Chap.  VII.),  apply  equally  in  civil  and  criminal 
proceedings. 


66  NEWSPAPER   LIBEL. 

criminal  libel  and  fined  $500,  with  the  alternative  of 
spending  six  months  in  the  house  of  correction.  His 
offence  consisted  in  being  the  responsible  publisher  of 
the  News  on  the  18th  of  May,  1883,  when  a  com- 
munication from  a  resident  of  Salem  was  published  in 
the  paper,  in  Mr.  Damon's  absence  from  the  city,  and 
without  his  knowledge,  concerning  John  W.  Hart,  the 
city  marshal.  The  communication  was  headed  "A 
Malicious  City  Marshal,"  and  contained  charges,  by 
implication,  that  Mr.  Hart  had  taken  bribes.1 

It  has  been  said  that  an  editor  or  publisher  cannot 
be  held  criminally  liable   unless  some   negligence    or 
blame   attaches  to  him ;   but  the  presumption  of  cul- 
pable  knowledge  or  connivance  in  the  publication  of 
the   libel  can  generally  be  disproved  only  by  showing 
that  the  publisher  has  been  a  victim  of  fraud  or  im- 
position on  the  part  of  some  of  his  subordinates.     He 
is  legally  bound  to  exert  vigilance  in  the  conduct  of  his 
business  and  to  employ  trustworthy  assistants,  and  this 
obligation   rests  alike   upon  the  managing  editor,   the 
publisher,   the    proprietor,   and   even    the    news    agent 
wno  circulates  copies  of  the  newspaper.     "  Legal  crim- 
inality is   merely  legal   responsibility,    and  may  exist 
where  there  is  no  moral  criminality  whatever."2      It 
would  seem  that  if  the  excuse,    "didn't  know   it  was 
loaded,"   will   ordinarily   be    received    as   a    complete 
defence  where  one   man    shoots    another,   the   excuse, 
"didn't  know    it  was   libellous,"   or,   "didn't  know  it 
was  going  to  be  published,"   ought  to  be  received   in 
full  defence  in  a  case  of  criminal  libel ;  but  such  is  not 
the   law.     Malice,  either  actual  or  constructive,  must, 

1  Commonwealth  ?>.  Damon,  136  Mass.  441. 

2  Holt  on  Libel,  p.  53. 


CRIMINAL   LIBEL. 


67 


however,  be  more  clearly  shown  in  criminal  than  in 
civil  cases,  and  disproof  of  actual  malice  will  tend  in 
mitigation  of  punishment. 

The  Boston  Saturday  Evening  Express,  in  its  issue 
for  September  n,  1870,  charged  "State  Cop"  Dean 
with  having  acted,  while  a  soldier  in  the  army,  in  a 
manner  to  indicate  cowardice,  and  with  having  been 
drunk  while  on  duty  as  a  deputy  of  the  constable  of 
the  Commonwealth.  Albert  Morgan,  the  proprietor  of 
the  Express,  was  arrested  at  the  instance  of  Chauncey 
C.  Dean,  and  tried  and  convicted  of  criminal  libel. 
The  Court  held  that  to  constitute  a  defence  it  was 
necessary  for  Mr.  Morgan  to  prove  that  he  used  due 
care  in  conducting  the  paper,  and  that  the  libel  was  pub- 
lished notwithstanding  such  care.  Mr.  Morgan  showed 
in  his  defence  that  the  libel  was  published  without  his 
knowledge,  and  that  he  promptly  published  an  apology 
and  retraction,  but  the  Court  ruled  that  this  was  not  in 
itself  sufficient.1 

The  principles  of  law  just  stated  are  based,  in  most 
of  the  States,  upon  the  common  law  and  the  decisions  of 
the  courts.  In  New  York,  similar  principles  are  thus 
laid  down  by  statute  in  the  Penal  Code  :  — 

§  246.  —  Every  editor  or  proprietor  of  a  book,  newspaper  or 
serial,  and  every  manager  of  a  partnership  or  incorporated 
association,  by  which  a  book,  newspaper  or  serial  is  issued,  is 
chargeable  with  the  publication  of  every  matter  contained  in 
such  book,  newspaper  or  serial.  But  in  every  prosecution 
for  libel  the  defendant  may  show  in  his  defence  that  the 
matter  complained  of  was  published  without  his  knowledge 
or  fault  and  against  his  wishes,  by  another  who  had  no  au- 
thority from  him  to  make  the  publication,  and  whose  act  was 
disavowed  by  him  as  soon  as  known. 

1  Commonwealth  v.  Morgan,  107  Mass.  199. 


68  NEWSPAPER   LIBEL. 

It  will  be  observed  that  the  civil  liability  is  broader 
than  the  criminal  liability.  In  a  civil  action  for  dam- 
ages a  verdict  may  be  obtained  against  the  proprietor  of 
a  newspaper  even  though  he  had  actually  forbidden,  in 
advance,  the  publication  of  the  libel,  and  exercised  due 
care  to  prevent  it.1  In  such  case,  however,  the  plain- 
tiff cannot  recover  punitive  damages,  but  only  the 
damages  to  property  or  reputation  which,  in  the 
opinion  of  the  jury,  have  been  the  immediate  actual 
result  of  the  libel. 

As  has  been  seen  in  the  preceding  chapter,  defam- 
atory matter  may  be  the  subject  of  an  action  whether  the 
person  defamed  is  named  in  the  libel  or  not,  and  this 
is  equally  true  in  criminal  cases.  Edmund  Yates,  ed- 
itor of  the  London  World,  was  sentenced  to  four 
months'  imprisonment  on  conviction  for  publishing  the 
following  paragraph,  January  17,  1883  :  — 

A  strange  story  is  in  circulation  in  certain  sporting  circles 
concerning  the  elopement  of  a  young  lady  of  very  high 
rank  and  noble  birth  with  a  young  peer,  whose  marriage  was 
one  of  affection,  but  whose  wife  has,  unfortunately,  fallen 
into  a  delicate  state  of  health.  The  elopement  is  said  to 
have  taken  place  from  the  hunting  field.  The  young  lady, 
who  is  only  one  or  two  and  twenty,  is  a  very  fair  rider,  and 
the  gentleman  a  master  of  hounds. 

The  Earl  of  Lonsdale  considered  himself  one  of  the 
objects  of  attack,  and  convinced  a  jury  of  that  fact. 
Mr.  Yates  received  his  sentence  from  Chief  Justice 
Coleridge,  and  just  two  years  lacking  a  day  after  the 
publication  of  the  libel,  began  his  term  of  confine- 
ment in  Holloway  prison.     He   led  the  easy  life   of  a 

1  Hall  v.  Dunn  et  al.  (Political  Beacon),  i  Ind.  344.  (See  this  case  cited 
at  length  in  Chap.  V.  on  Publication.) 


CRIMINAL   LIBEL. 


69 


first-class  misdemeanant  in  elegant  quarters  within  the 
prison  walls  for  less  than  half  his  term,  and  then, 
March  10,  1885,  a  pardon  from  the  Home  Secretary 
transferred  his  editorial  headquarters  back  to  the  office 
of  the  World. 

As  already  stated,  it  is  a  criminal  libel  to  publish 
defamatory  matter  regarding  a  deceased  person.  It  is 
necessary,  however,  to  allege  in  the  indictment  in  such 
a  case  that  the  libel  was  published  with  intent  to  bring 
scandal  upon  the  family  of  the  deceased,  and  to  pro- 
voke his  surviving  relatives  and  friends  to  a  breach  of 
the  peace.  The  courts  are  disposed  to  look  with  dis- 
favor upon  such  prosecutions,  and  convictions  for  such 
libels  are  very  rare.  Lord  Chief  Justice  Coleridge 
said  in  a  recent  English  case,  "  It  must  be,  I  think, 
some  very  unusual  publication  to  justify  an  indictment 
or  information  for  aspersing  the  character  of  the  dead." 
Mr.  Justice  Stephen  is  even  quoted  as  saying,  "  The 
dead  have  no  rights,  and  can  suffer  no  wrongs,"  and 
intimating  that  in  his  opinion  it  should  under  no  cir- 
cumstances be  held  a  criminal  offence  to  traduce  the 
dead.1  But  in  some  States  libels  upon  deceased  per- 
sons are  expressly  provided  for  by  statute.2 

The  case  in  which  Lord  Coleridge  is  above  quoted 
was  one  growing  out  of  a  publication  in  TrutJi.  That 
lively  paper  had  described  a  deceased  duke  of  Vallom- 
brosa  in  the  following  terms  :  — 

An  army  contractor  who  was  nearly  hanged  on  the  charge 
of  supplying  as  meat  to  a  French  army  corps  the  flesh  of 
soldiers  who  had  died  in  hospital  or  who  had  been  killed 
in  battle.     Luckily  for  him  the  first  Empire  came  to  an  end 

1  Boston  Post,  April  23,  1887. 

2  See  the  New  York  statute,  ante,  p.  39. 


7° 


NEWSPAPER   LIBEL. 


before  the  trial  could  take  place,  and  the  contractor,  having 
retired  to  Italy  and  purchased  a  dukedom,  became  a  grand 
seigneur,  and  an  ardent  adherent  of  the  Bourbons. 

The  Duke  of  Vallombrosa,  son  of  the  deceased  duke 
in  question,  sought  a  criminal  information  against 
Henry  Labouchere,  M.  P.,  editor  of  Truth,  but  it  was 
refused.  One  ground  of  the  refusal  was  the  fact  that 
neither  the  living  duke  nor  any  of  his  family  was  in 
England,  and,  therefore,  no  breach  of  the  peace  was 
likely  to  result  from  the  publication.1 

Libels  of  a  criminal  character  may  also  be  published 

of  sects,  companies,  or  other  classes  of  persons  without 

naming  any  individuals,  provided  the  defamatory  words 

tend  to  expose  the  members    generally  to  hatred  or 

contempt.     Thus  it  was  held  in  the  case  of  a  military 

officer,  who  had  brought  a  civil  action  against  the  editor 

of  a  newspaper  for  a  libel  which  applied  equally   to 

all  the  officers  in  the  plaintiff's   regiment,  that  a  civil 

action  could  not  be  maintained  without  proof  that  the 

plaintiff  had  suffered  some  special  damage  on  account 

of  the  libel,  but  that  the  writer  or  publisher  of  the  libel 

was  liable  to  an  indictment.2     In  this  case   the   Court 

remarked,  "The  generality  and  extent  of  such  libels 

make  them   more  peculiarly  public  offences."     For  a 

similar  libel,  reflecting  on  the  conduct  of   the  officers 

and  men  of  the  Sixty-fifth  Canadian  Regiment  during 

the  Northwest  rebellion  in  1885,  Edmund  E.  Sheppard, 

editor  of  the  Toronto  Morning  News,  was  fined  $200  in 

the  Court  of  Queen's  Bench  at  Montreal,  although  he 

1  The  Queen  v.  Labouchere,  12  Queen's  Bench  Division  (1884),  320.  See 
also  Commonwen'th  v.  Origen  Batchelder  (Boston  Atiti-Uiiiversalisi), 
Thacher's  Criminal  Cases  (1829),  191. 

2  Sumner  v.  Buel  (Albany  Argus),  12  Johnson  (N.  Y.  1815),  475. 


CRIMINAL   LIBEL.  jX 

knew  nothing  of   the  libellous  matter  until  it  was  in 
print. 

A  novel  case,  involving  this  question,  was  decided  in 
the  Supreme  Judicial  Court  of  New  Hampshire  in  De- 
cember, 1868.  John  B.  Palmer  was  publisher  of  the 
Concord  Democratic  Standard  in  1S61.  That  he 
was  n't  exactly  a  "  war  Democrat  "  is  shown  by  the  fol- 
lowing scraps  of  poetry  and  prose  which  he  published 
August  3,  1S61  :  — 

THE   LATE   BATTLE  —  IMPROMPTU. 

It  frightened  the  Federals  to  see  them  come, 
They  wheeled  about  and  away  they  run; 
They  Run  so  fast  to  tell  the  new-. 
They  left  their  knapsacks,  guns,  and  shoes. 

EPIGRAM. 

To  Manassas  Junction 

The  Yankees  thought  was  fun, 
But  greatly  were  mistaken. 

For  they  only  took  the  Run. 

CHANGING   TUNE. 

"  Forward  to  Richmond,  let  us  fly  !  " 

The  Yankees  shout,  while  blundering  on, 

But  Davis  changed  their  battle  cry 
To  "  Backward,  boys,  to  Washington." 

(T^gr"  Our  Southern  papers  are  filled  with  heart-sickening 
accounts  of  the  murders  and  robberies  which  individuals  in 
Old  Abe's  Mob  are  perpetrating  on  the  Southern  people. 
Innocent  women  and  children  are  shot  on  their  own  door- 
steps, for  wearing  what  is  called  -  secession  bonnets."  Xo 
wonder  the  Northern  people  run,  when  the  honest  men  of 
the  South  march  toward  them. 

03^  The  Black  Republicans  are  making  a  great  ado  over 


72 


NEWSPAPER   LIBEL. 


the  treatment  of  our  dead  and  wounded  soldiers  by  the  Con- 
federate troops,  at  the  Battle  of  Bull  Run.  But  not  one 
word  have  they  to  say  about  the  conduct  of  otirs  upon  men, 
women  and  children,  in  Hampton,  Martinsburg,  Fairfax, 
Germantown,  and  other  places  in  Virginia  and  Missouri 
through  which  they  have  passed. 

These  verses  and  paragraphs  were  published  August 
3.  Two  days  later  the  First  New  Hampshire  Volunteers, 
a  three-months  regiment,  reached  Concord  on  their 
return  from  the  front,  having  completed  their  term  of 
service.  The  feeling  against  the  copperhead  editor 
became  so  intense,  on  account  of  the  publication  and 
the  editor's  subsequent  conduct,  that  threats  of  violence 
were  made  against  him  by  the  returned  soldiers.  He 
had  been  warned  earlier  in  the  summer  of  the  personal 
danger  which  he  was  incurring,  but  his  only  measure  of 
protection  was  the  purchase  of  a  revolver,  with  which 
he  declared  himself  ready  to  meet  the  whole  of  Old 
Abe's  ';  mob,"  if  need  be.  On  the  morning  of  August 
8,  several  soldiers  entered  his  office  and  asked  for  the 
Standard  containing  the  obnoxious  matter,  and  Mr. 
Palmer  promptly  and  freely  gave  them  several  copies. 
Later  in  the  day  his  office  was  attacked  by  a  mob  com- 
posed of  privates  belonging  to  the  First  Regiment,  and 
others,  and  though  the  plucky  editor  made  as  good  a 
defence  as  he  was  able,  his  printing  materials  were  en- 
tirely destroyed.  Mr.  Palmer  sought  to  recover  dam- 
ages from  the  city  under  chapter  15 19,  New  Hampshire 
laws  of  1854,  which  provides  for  the  payment  of  indem- 
nity by  cities  and  towns  for  property  destroyed  by 
mobs.  The  city  in  its  defence  relied  upon  the  second 
section  of  the  same  chapter,  which  was  as  follows  : 
"No  person  or  persons  shall  be  entitled  to  the  benefits 


CRIMINAL   LIBEL. 


73 


of  this  act  if  it  shall  appear  that  the  destruction  of  his 
or  their  property  was  caused  by  his  or  their  illegal  or 
improper  conduct."  The  Court  held  that  all  of  the  pub- 
lications were  prima  facie  libellous,  except  the  quatrains 
entitled  "  Epigram  "and  "Changing  Tune,"  and  that 
they  constituted  "  illegal  conduct  "  within  the  meaning 
of  the  section  above  quoted,  unless  justified  or  excused 
by  facts  sufficient  to  constitute  a  defence  to  an  indict- 
ment for  libel.  In  the  decision  of  the  case  the  Court 
said  :  "  If  he  had  no  justifiable  motive,  inasmuch  as  the 
natural  and  inevitable  tendency  of  the  publication  is  to 
injure  and  degrade,  he  is  guilty  of  libel  even  though  the 
facts  alleged  in  the  articles  were  true."  1  The  Court 
cited  the  case  of  Sumner  v.  Buel  (above  referred  to) 
somewhat  at  length,  and  with  approval.  Mr.  Palmer 
accordingly  lost  his  case  against  the  city. 

A  libel  may  be  the  subject  of  an  indictment  where  it 
injuriously  affects  one  in  his  office,  profession,  or  trade, 
or  where  it  imputes  a  contagious  or  infectious  disease, 
or  where  it  tends  to  expose  one  to  hatred,  contempt,  or 
ridicule.  It  is  not  necessary  that  it  convey  a  charge  of 
crime  ;  it  is  sufficient  if  its  tendency  is  to  bring  its  sub- 
ject into  ridicule  and  contempt. 

The  Charleston,  S.  C,  Bulletin  published  an  article 
under  the  heading,  "Goat  Racing  Club,"  giving  a  ludi- 
crous account  of  the  proceedings  of  a  fictitious  club, 
and  mentioning  the  names  of  several  persons  as  mem- 
bers.    It  was  held  to  be  a  criminal  libel.2 

Julius  Chambers,  a  Philadelphia  correspondent  of  the 
New  York  Herald,  sent  to  that  paper  a  report  of  an 
interview  with  a  prisoner  in  the  Moyamensing  jail,  in 

1  Palmer  v.  Concord,  48  N.  H.  (1868),  217. 

2  State  v.  Henderson,  1  Richardson's  Law  Reports  (1845),  179. 


74 


NEWSPAPER   LIBEL. 


which  the  affairs  of  the  fraudulent  "Peruvian  Com- 
pany" were  discussed.  The  prisoner  was  quoted  as 
saying  that  Senator  McPherson,  of  New  Jersey,  was 
the  "  mysterious  senator  "  who  had  often  been  referred 
to  in  connection  with  the  affairs  of  the  company  ;  that 
he  owned  one-twentieth  of  the  stock  in  the  concern, 
and  that  he  worked  very  hard  in  its  interests.  This 
report  was  published  in  the  Herald,  April  22,  18S2,  and 
Mr.  Chambers  was  immediately  indicted  for  criminal 
libel.  Senator  McPherson,  the  prosecutor,  pressed  the 
case  strongly,  and  the  correspondent  was  convicted, 
the  Court  holding  that  a  man  cannot  "  lawfully  publish 
a  story  of  another  which  is  calculated  to  make  him 
contemptible  or  ridiculous  in  the  eyes  of  his  associates 
and  acquaintances,  although  he  accompanies  the  publi- 
cation with  a  statement  of  his  own  disbelief  in  the 
story."  1  Mr.  Chambers  was  fined  $1,000,  and  the  fine 
was  immediately  paid. 

A  publication  is  a  seditious  libel  if  its  object  and 
effect  are  to  disturb  the  peace  of  society  or  the  exist- 
ence of  government.  Prosecutions  for  seditious  libel 
have,  however,  been  extremely  rare  in  this  country, 
save  in  the  brief  period  during  which  the  Alien  and 
Sedition  Laws  were  in  force  (July  14,  1798-March  3, 
1801).  These  laws  were  designed  among  other  things 
to  restrain  the  license  of  the  press  in  the  discussion  of 
political  affairs ;  but  their  effect  was  to  provoke  the 
newspapers  of  the  day  to  still  more  bitter  invective 
against  political  opponents,  and  especially  against  the 
administration  of  John  Adams.  They  constituted  one 
of  the   chief  causes  of  the   overthrow  of  the  Federal 

1  Commonwealth  v.  Chambers,  15  Philadelphia  Reports,  415.  Mr.  Chambers 
has  since  become  managing  editor  of  the  Herald. 


CRIMINAL    LIBEL.  75 

party.  "Under  the  Alien  Law  the  'aliens'  became 
still  more  fractious;  under  the  Sedition  Law  the  'sedi- 
tious' became  still  more  scurrilous;  and  the  result  was, 
that  the  government  found  itself  impudently  bullied  by 
those  it  attempted  to  chastise.  It  was  reserved  for 
later  times  to  demonstrate  that,  after  all,  a  press  the 
most  unfettered  is  a  press  the  most  restrained."  l 

As  has  been  seen,  it  is  a  seditious  libel  "to  cause 
animosities  between  our  own  and  any  foreign  govern- 
ment, by  personal  abuse  of  its  sovereign,  its  ambas- 
sadors, or  other  public  ministers."2  Criminal  pro- 
ceedings were  undertaken  under  this  principle  of  law 
against  William  Cobbett,  of  Philadelphia,  editor  of  Por- 
cupine's Gazette,  in  November,  1797,  a  few  months  before 
the  passage  of  the  Alien  and  Sedition  Laws.  The 
proceedings  were  instituted  in  the  Supreme  Court  of 
Pennsylvania,  the  Court  holding  that  a  prosecution 
of  this  character  can  be  maintained  in  a  State  court. 
The  language  charged  with  being  libellous  was  the 
following,  published  in  Porcupine's  Gazette,  July  17, 
1797:  — 

The  degenerate  prince  that  now  sways  the  Spanish 
sceptre,  whom  the  French  have  kept  on  the  throne  merely 
as  a  trophy  of  their  power,  or  as  the  butt  of  their  insolence, 
seems  destitute  not  only  of  the  dignity  of  a  king,  but  of  the 
common  virtues  of  a  man.  ...  In  the  present  state  of 
things,  the  independence  of  the  United  States  is  little  more 
than  a  shadow;  it  is  really  not  worth  what  it  cost  to  acquire 
and  support  it;  and,  unless  a  stop  can  be  put  to  the  progress 
of  factions  and  foreign  interference,  instead  of  a  blessing,  it 
will  erelong  be  a  burden  which  even  the  vassals  of  Prussia 
would  not  lake  off  our  hands  as  a  gift. . 

1  Wharton,  State  Trials  of  the  United  States,  p.  26. 

2  See  ante,  p.  63. 


76  NEWSPAPER   LIBEL. 

Besides  these  passages,  two  others  were  relied  upon 
by  the  government  in  the  prosecution.  They  were 
dated  July  24  and  July  31,  1797,  and  were  especially 
defamatory  toward  the  Spanish  minister  to  the  United 
States.  Judge  McKean  in  his  charge  to  the  grand  jury 
said  :  — 

"  At  a  time  when  misunderstandings  prevail  between 
the  republics  of  France  and  the  United  States,  and 
when  our  general  government  have  appointed  public 
ministers  to  endeavor  their  removal  and  restore  the 
former  harmony,  some  of  the  journals  or  newspapers  in 
the  city  of  Philadelphia  have  teemed  with  the  most 
irritating  invectives,  couched  in  the  most  vulgar  and 
opprobrious  language,  not  only  against  the  French  na- 
tion and  their  allies,  but  the  very  men  in  power  with 
whom  the  ministers  of  our  country  are  sent  to  nego- 
tiate. These  publications  have  an  evident  tendency 
not  only  to  frustrate  a  reconciliation,  but  to  create  a 
rupture  and  provoke  a  war  between  the  sister  republics, 
and  seem  calculated  to  vilify,  nay,  to  subvert,  all  repub- 
lican governments  whatever.  Impressed  with  the 
duties  of  my  station,  I  have  used  some  endeavors  for 
checking  these  evils  by  binding  over  the  editor  and 
printer  of  one  of  them,  licentious  and  virulent  beyond 
all  former  example,  to  his  good  behavior;  but  he  still 
perseveres  in  his  nefarious  publications ;  he  has  ran- 
sacked our  language  for  terms  of  insult  and  reproach. 
...  It  is  now  with  you,  gentlemen  of  the  grand  jury, 
to  animadvert  on  his  conduct ;  without  your  aid  it  can- 
not be  corrected." 

The  grand  jury  refused  to  lend  its  aid  to  correct  Mr. 
Cobbett's  conduct,  for  by  a  strict  party  vote  the  Fed- 


CRIMINAL   LIBEL. 


77 


eralists  upon  the  jury  succeeded  in  defeating  the  indict- 
ment.1 

Another  case  of  alleged  seditious  libel  came  before 
the  courts  of  the  same  State  six  years  later,  shortly 
after  the  expiration  of  the  Alien  and  Sedition  Laws, 
and,  as  in  the  case  of  Cobbett,  the  defendant  escaped 
conviction  Joseph  Dennie,  editor  of  the  Philadelphia 
Portfolio,  was  indicted  in  July,  1803,  for  the  publica- 
tion of  the  following  paragraph  in  his  paper  on  the  23d 
of  April  in  that  year  :  — 

A  democracy  is  scarcely  tolerable  at  any  period  of  na- 
tional history.  Its  omens  are  always  sinister,  and  its 
powers  are  unpropitious.  With  all  the  lights  of  experience 
blazing  before  our  eyes,  it  is  impossible  not  to  discover  the 
futility  of  this  form  of  government.  It  was  weak  and 
wicked  at  Athens,  it  was  bad  at  Sparta,  and  worse  at  Rome. 
It  has  been  tried  in  France,  and  terminated  in  despotism. 
It  was  tried  in  England,  and  rejected  with  the  utmost  loath- 
ing and  abhorrence.  It  is  on  its  trial  here,  and  its  issue 
will  be  civil  war,  desolation,  and  anarchy.  No  wise  man  but 
discovers  its  imperfections,  no  good  man  but  shudders  at 
its  miseries,  no  honest  man  but  proclaims  its  fraud,  and  no 
brave  man  but  draws  his  sword  against  its  force.  The  in- 
stitution of  a  scheme  of  polity  so  radically  contemptible 
and  vicious  is  a  memorable  example  of  what  the  villany  of 
some  men  can  devise,  the  folly  of  others  receive,  and  both 
establish  in  despite  of  reason,  reflection,  and  sensation. 

Philadelphia  was  at  that  time  the  capital  of  the  youth- 
ful republic,  and  great  anxiety  was  felt  lest  the  attacks 
upon  the  new  frame  of  government  which  were  pub- 
lished in  the  newspapers  of  the  city  should  result  in 
its  overthrow.     The  Court,   in   charging  the  petit  jury, 

1  The  case  of  William  Cobbett,  Wharton's  State  Trials  of  the  United  States, 
p.  322. 


78  NEWSPAPER  LIBEL. 

thus  laid  down  the  law  regarding  seditious  libels  :  "  If 
the  consciences  of  the  jury  shall  be  clearly  satisfied  that 
the  publication  was  seditiously,  maliciously,  and  wil- 
fully aimed  at  the  independence  of  the  United  States, 
the  Constitution  thereof,  or  of  this  State,  they  should  con- 
vict the  defendant.  If,  on  the  other  hand,  the  produc- 
tion was  honestly  meant  to  inform  the  public  mind,  and 
warn  them  against  supposed  dangers  in  society,  though 
the  subject  may  have  been  treated  erroneously,  .  .  . 
they  should  acquit  the  defendant."  The  jury  returned 
a  verdict  of  not  guilty. *  Probably  no  prosecution 
for  such  publications  as  this,  or  that  of  Cobbett,  could 
ever  be  successful  in  this  country,  save  in  time  of  war 
or  great  popular  excitement.  A  government  whose  con- 
stitution is  worthy  of  respect  and  confidence  has  nothing 
to  fear  from  comments  and  criticisms,  friendly  or  hostile, 
upon  the  fundamental  law  upon  which  it  is  based. 

Shortly  after  the  execution  at  Manchester,  England, 
of  the  three  Irishmen,  Allen,  Larkin,  and  O'Brien,  in 
1867,  for  implication  in  the  Fenian  uprising  of  that 
year,  the  Weekly  News,  an  Irbh  newspaper,  published 
several  cartoons,  for  which  the  editor,  Alexander  M. 
Sullivan,  was  indicted  for  seditious  libel.  One  of  the 
cartoons  represented  the  British  government  in  the 
form  of  a  woman,  holding  aloft  a  bloody  dagger  and 
trampling  upon  the  scales  of  justice,  the  picture  being 
entitled  "  It  is  Done."  Another  cartoon  represented 
a  woman,  intended  to  personify  the  British  government, 
bearing  a  dagger  and  pursued  by  the  angel  of  justice 
from  a  place  where  three  bodies  lay  upon  the  ground. 
The    Weekly  News  contained  also  a  series  of  articles 

1  Respublica  v.  Dennie,  4  Yeales,  267.  For  cases  under  the  Alien  and  Sedi- 
tion Laws,  see  Chap.  VIII.  on  Political  Libels. 


CRIMINAL  LIBEL. 


79 


relating  to  the  trial  and  execution  of  the  three  men. 
Judge  Fitzgerald,  in  charging  the  jury,  said  that  it  was 
open  to  the  defendant  to  show  that  error  was  committed 
on  the  part  of  the  judge  or  jury  at  the  trial  of  Allen, 
Larkin,  and  O'Brien,  but  that  he  was  not  at  liberty  to 
impute  corruption.  "  It  is  also  quite  open  to  the 
defendant  to  discuss  the  executions  as  a  political 
blunder,  for  that  is  a  subject  upon  which  public  opinion 
is  very  much  divided."1  Mr.  Sullivan  was  convicted. 
In  the  nature  of  a  seditious  libel  was  the  "bogus 
proclamation,"  published  in  the  New  York  World  and 
Journal  of  Commerce,  May  18,  1864,  at  a  time  when 
the  result  of  the  Rebellion  was  a  matter  of  grave 
doubt.     The  forged  document  was  as  follows  :  — 

Executive  Mansion,  May  17,  1S64. 
Fellow-Citizens  of  the  United  States  :  — 

In  all  seasons  of  exigency  it  becomes  a  nation  carefully 
to  scrutinize  its  line  of  conduct,  humbly  to  approach  the 
Throne  of  Grace,  and  meekly  to  implore  forgiveness,  wis- 
dom, and  guidance. 

For  reasons  known  only  to  Him,  it  has  been  decreed 
that  this  Country  should  be  the  scene  of  unparalleled  out- 
rage, and  this  nation  the  monumental  sufferer  of  the  Nine- 
teenth Century.  With  a  heavy  heart,  but  an  undiminished 
confidence  in  our  cause,  I  approach  the  performance  of  a 
duty  rendered  imperative  by  my  sense  of  weakness  before 
the  Almighty,  and  of  justice  to  the  people. 

It  is  not  necessary  that  I  should  tell  you  that  the  first 
Virginia  campaign  under  Lieut.-Gen.  Grant,  in  whom  I  have 
every  confidence,  and  whose  courage  and  fidelity  the  people 
do  well  to  honor,  is  virtually  closed.  He  has  conducted  his 
great  enterprise  with  discreet  ability.  He  has  crippled  their 
strength  and  defeated  their  plans. 

1  The  Queen  v.  Sullivan,  n  Cox's  Criminal  Cases,  44  and  51. 


80  NEWSPAPER   LIBEL. 

In  view,  however,  of  the  situation  in  Virginia,  the  disaster 
at  Red  River,  the  delay  at  Charleston,  and  the  general  state 
of  the  country,  I,  ABRAHAM  LINCOLN,  do  hereby  rec- 
ommend that  THURSDAY,  the  26th  day  of  May,  A.  D. 
1864,  be  solemnly  set  apart  throughout  these  United  States 
as  a  day  of  fasting,  humiliation,  and  prayer. 

Deeming,  furthermore,  that  the  present  condition  of  pub- 
lic affairs  presents  an  extraordinary  occasion,  and  in  view 
of  the  pending  expiration  of  the  service  of  (100,000)  one 
hundred  thousand  of  our  troops,  I,  ABRAHAM  LIN- 
COLN, President  of  the  United  States,  by  virtue  of  the 
power  vested  in  me  by  the  Constitution  and  the  laws,  have 
thought  fit  to  call  forth,  and  hereby  do  call  forth,  the  citizens 
of  the  United  States  between  the  ages  of  (18)  eighteen  and 
(45)  forty-five  years,  to  the  aggregate  number  of  (400,000) 
four  hundred  thousand,  in  order  to  suppress  the  existing 
rebellious  combinations,  and  to  cause  the  due  execution  of 
the  laws. 

And  furthermore,  in  case  any  State  or  number  of  States, 
shall  fail  to  furnish  by  the  fifteenth  day  of  June  next  their 
assigned  quota,  it  is  hereby  ordered  that  the  same  be  raised 
by  an  immediate  and  peremptory  draft. 

The  details  for  this  object  will  be  communicated  to  the 
State  authorities  through  the  War  Department. 

I  appeal  to  all  loyal  citizens  to  favor,  facilitate  and  aid 
this  effort  to  maintain    the    honor,   the    integrity,    and    the 
existence  of  the  National  Union,  and  the  perpetuity  of  pop- 
ular government. 
In  witness  whereof,  I  have  hereunto  set  my  hand  and  caused 

the  seal  of  the  United  States  to  be  affixed. 
Done  at  the  city  of  Washington  this  17th  day  of  May,  one 
thousand  eight  hundred  and  sixty-four,  and  of  the  inde- 
pendence of  the  United  States  the  eighty-eighth. 

(Signed)     ABRAHAM    LINCOLN. 

By  the  President. 

Wm.  II.  Sewakd,  Secretary  of  State. 


CRIMINAL   LIBEL.  8r 

The  author  of  the  hoax  was  Joseph  Howard,  Jr.,  a 
newspaper  man  then  residing  in  Brooklyn.  An  effort 
was  made  to  secure  its  publication  in  all  the  Associated 
Press  papers  by  sending  it  upon  manifold  paper  as  if  it 
were  a  regular  press  despatch.  The  two  papers  named 
were  victimized,  and  the  Herald  also  printed  25.000 
copies  of  its  issue  with  the  supposed  proclamation 
under  a  "  scare  head  "  before  the  imposture  was  dis- 
covered. The  World  and  Journal  of  Commerce  were 
suppressed  by  order  of  the  President,  and  several  of 
the  editors  and  proprietors  placed  under  arrest.  The 
order  of  arrest  was  almost  immediately  countermanded, 
but  the  two  offices  were  under  strict  military  guard, 
and  the  issue  of  newspapers  from  them  was  suspended 
for  three  days.  Howard  was  imprisoned  for  some 
months  at  Fort  Lafayette  awaiting  trial,  but  he  was 
finally  discharged,  on  account  of  political  influence, 
without  punishment.  His  motive  in  committing  the 
forgery  was  supposed  to  be  a  desire  to  influence  the 
stock  market,  but  he  has  since  declared  that  he  acted 
thoughtlessly,  and  merely  intended  to  produce  a  news- 
paper sensation.  The  legal  questions  involved  in  this 
remarkable  case  were  never  the  subject  of  judicial 
decision,  although  Major-Gen.  Dix  and  several  minor 
officers  were  arrested,  charged  with  violating  both 
the  State  and  national  laws  in  suppressing  the  two 
newspapers  and  apprehending  the  victims  of  the  hoax. 
The  action  of  the  government  was  severely  criticised, 
and  seems  hardly  justifiable,  even  as  a  war  measure.1 

The  Chicago  limes,  in  1863,  under  the  management 
of  Wilbur  F.  Storey,  was  also  suppressed  by  the  govern- 
ment for  seditious  sentiments  ;  but,  as  in  the  case  of  the 

1  Hudson,  Journalism  in  the  United  States,  pp.  373,  670. 


82  NEWSPAPER   LIBEL. 

1 for Id  and  Journal  of  Commerce,  the  order  was  revoked 
by  the  President  after  the  office  of  publication  had  been 
under  military  guard  for  three  days.  Mr.  Storey's 
trials  during  the  war  were  so  great,  that  at  its  close  he 
announced,  "After  this  the  Tiines  will  support  all  wars 
that  the  country  may  undertake."  The  course  of  the 
Times  in  opposing  everything  connected  with  the  con- 
duct of  the  war  excited  great  popular  resentment,  but 
the  action  of  the  War  Department  in  suppressing  the 
paper  was  equally  unpopular.  "  It  was  the  making 
of  the  paper,  in  all  probability.  Indignation  was  ex- 
pressed by  many  who  before  condemned  the  publica- 
tion, and  partisan  feelings  ran  so  high,  that  a  riot  would 
surely  have  resulted  had  not  the  President  revoked  the 
order."  * 

Libels  on  State  governments,  as  well  as  upon  the 
Federal  government, are  indictable  as  seditious  libels;2 
and  so  also  are  libels  on  municipal  corporations.3  But 
"while  it  maybe  proper  to  prosecute  criminally  the 
author  of  a  libel  charging  a  legislator  with  corruption, 
criticisms,  no  matter  how  severe,  on  a  legislature  are 
within  the  range  of  the  liberty  of  the  press,  unless  the 
intention  and  effect  be  seditious."4  As  will  be  seen 
in  the  chapter  on  Privileged  Publications,  comments 
upon  the  policy  of  the  government,  and  upon  other 
matters  of  public  concern,  including  the  conduct  of 
government  officials  of  whatever  rank,  are  protected  by 
the    law   of  privilege,  if  published   in   good   faith.     A 

1  Chicago  Herald,  Oct.  28,  1884. 

2  The  law  upon  this  subject  has  been  modified  in  Texas  by  art.  633  of  the 
Penal  Code  :  "  No  publication  as  to  the  government,  or  any  of  the  branches 
thereof  as  such,  is  an  oflence  under  the  name  of  seditious  writings  or  any  othei 
name." 

3  Wharton's  Criminal  Law,  vol.  II.,  §  1602. 

4  Wharton's  Criminal  Law,  vol.  II.,  §  1613. 


CRIMINAL   LIBEL.  83 

prosecution  cannot  accordingly  be  based  upon  a  publi- 
cation which  was  written  without  malice,  where  the 
defendant  believed,  on  reasonable  grounds,  that  what  he 
was  writing  was  for  the  public  good. 

Seditious  articles  are  none  the  less  libels  against  the 
government  because  they  are  copied  as  news  from  for- 
eign newspapers.  Thus  Richard  Pigott  was  convicted 
in  Ireland  of  seditious  libel  in  publishing  in  the  Irish- 
man articles  taken  from  the  Boston  Pilot  and  other 
American  papers  relating  to  the  Fenian  movement.1 
The  articles  were  published  about  the  time  of  the 
Fenian  uprising  in  Ireland  of  1867. 

Prosecutions  for  seditious  libel  have  naturally  been 
much  more  frequent  in  England  than  in  this  country. 
One  curious  case,  and  especially  interesting  on  this 
side  of  the  ocean,  was  that  of  the  King  v.  John  Home 
(afterward  John  Home  Tooke).  The  seditious  article 
was  as  follows :  — 

King's  Arms  Tavern, 
Cornhill,  June  7,  1775. 

At  a  special  meeting  this  day,  of  several  members  of  the 
Constitutional  Society,  during  an  adjournment,  a  gentleman 
proposed  that  a  subscription  should  be  immediately  entered 
into  by  such  of  the  members  present  who  might  approve  the 
purpose,  for  raising  the  sum  of  ^100  to  be  applied  to  the 
relief  of  the  widows,  orphans,  and  aged  parents  of  our 
beloved  American  fellow-subjects,  who,  faithful  to  the  char- 
acter of  Englishmen,  preferring  death  to  slavery,  were  for 
that  reason  only  inhumanly  murdered  by  the  King's  troops 
at  or  near' Lexington  and  Concord,  in  the  province  of  Massa- 
chusetts, on  the  19th  of  last  April ;  which  sum  being  imme- 
diately collected,  it  was  therefore  resolved  that  Mr.  Home 
do   pay   to-morrow   into  the  hands  of  Mess.  Brownes  and 

1  The  Queen  v.  Pigott,  n  Cox's  Criminal  Cases,  44  and  60. 


84  NEWSPAPER   LIBEL. 

Collinson,  on  the  account  of  Dr.  Franklin,  the  said  sum  of 
,£ioo,and  that  Dr.  Franklin  be  requested  to  apply  the  same 
to  the  above-mentioned  purpose.  John  Horne. 

This  letter  was  published  June  9,  1775,  in  the 
Morning  Chronicle  and  London  Advertiser,  the  London 
Packet,  or  New  Lloyd's  Evening  Post,  and  the  Public 
Advertiser.  Mr.  Horne  was  tried  before  Lord  Mans- 
field in  the  Court  of  King's  Bench,  July  4,  1777.  He 
conducted  his  own  case,  and  was  convicted.  He  was 
ordered  to  pay  a  fine  of  .£200,  to  be  imprisoned  twelve 
months  and  until  his  fine  was  paid,  and  to  find  sureties 
for  his  good  behavior  for  three  years  after  his  release 
from  prison.1 

Leigh  Hunt  and  his  brother  published  the  Examiner 
in  London  in  1814.  A  society  journal  having  called 
the  Prince  of  Wales  (afterward  George  IV.)  an 
Adonis,  Hunt  added  in  the  Examiner,  "  A  fat  Adonis 
of  50."  For  this  grievous  libel  on  the  regent  the 
brothers  were  sentenced  to  pay  a  fine  of  ^"500  each, 
and  to  be  imprisoned  for  two  years.  The  fines  were 
paid  by  the  contributions  of  friends,  but  the  imprison- 
ment was  served  in  person.  Their  connection  with  the 
Examiner  was  not  interrupted  by  their  residence  in 
jail.2 

A  blasphemous  libel  is  one  which  contains  matter 
relating  to  God,  Jesus  Christ,  or  the  Bible,  designed  to 
wound  the  feelings  of  readers  or  bring  the  Christian 
religion  into  contempt.  The  following  article,  published 
by  Abner  Kneeland,  who  had  formerly  been  a  minister, 
in  the  Boston  Lnvestigaior,  December  20,  1S33,  was 
held  to  be  such  a  libel :  — 

1  The  King  v.  Home,  20  Howell's  State  Trials,  651. 

2  American  Encyclopaedia,  "  James  Henry  Leigh  Hunt." 


CRIMINAL   LIBEL.  85 

1.  Universalists  believe  in  a  god,  which  I  do  not;  but 
believe  that  their  god,  with  all  his  moral  attributes  (aside 
from  nature  itself),  is  nothing  more  than  a  chimera  of  their 
own  imagination. 

2.  Universalists  believe  in  Christ,  which  I  do  not;  but 
believe  that  the  whole  story  concerning  him  is  as  much  a 
fable  and  a  fiction,  as  that  of  the  god  Prometheus,  the 
tragedy  of  whose  death  is  said  to  have  been  acted  on  the 
stage  in  the  theatre  at  Athens  five  hundred  years  before 
the  Christian  era. 

3.  Universalists  believe  in  miracles,  which  I  do  not;  but 
believe  that  every  pretension  to  them  can  either  be  accounted 
for  on  natural  principles  or  else  is  to  be  attributed  to  mere 
trick  and  imposture. 

4.  Universalists  believe  in  the  resurrection  of  the  dead, 
in  immortality  and  eternal  life,  which  I  do  not ;  but  believe 
that  all  life  is  mortal,  that  death  is  an  eternal  extinction  of 
life  to  the  individual  who  possesses  it,  and  that  no  individual 
life  is,  ever  was,  or  ever  will  be  eternal. 

Mr.  Kneeland  was  sentenced  to  sixty  days'  imprison- 
ment in  the  common  jail.1 

1  he  Freethinker,  published  in  London,  in  its  issue  for 
March  26,  1882,  contained  this  paragraph:  — 

The  God  whom  Christians  love  and  adore  is  depicted  in 
die  Bible  with  a  character  more  bloodthirsty  than  a  Bengal 
tiger  or  a  Bashi-Bazouk.  He  is  credited  with  all  the  vices 
and  scarcely  any  of  the  virtues  of  a  painted  savage.  Wanton 
cruelty  and  heartless  barbarity  are  his  essential  characteris- 
tics. If  any  despot  at  the  present  time  tried  to  emulate,  at 
the  expense  of  his  subjects,  the  misdeeds  of  Jehovah,  the 
great  majority  of  Christian  men  would  denounce  his  con- 
duct in  terms  of  indignation. 


■»* 


1  Commonwealth  v.   Kneeland,    Thacher's  Criminal  Cases,  346;  affirmed  20 
Pickering,  206. 

5 


86  NEWSPAPER   LIBEL. 

For  this,  and  a  number  of  other  publications  of 
like  character,  the  publisher,  Ramsey,  and  the  editor, 
Foote,  together  with  Charles  Bradlaugh,  M.  P.,  who 
had  previously  been  connected  with  the  Freethinker, 
were  indicted.  Bradlaugh  secured  a  separate  trial,  and 
was  acquitted.1  The  jury  in  the  case  of  Ramsey  and 
Foote  failed  to  agree,  and  when  the  case  came  on  for 
a  new  trial  it  was  no/,  pros'd,  the  defendants  having 
already  been  convicted  of  a  similar  offence.2  Lord 
Chief  Justice  Coleridge  declared  at  the  trial :  "  I  have 
no  doubt  that  the  mere  denial  of  the  truth  of  Chris- 
tianity is  not  enough  to  constitute  the  offence  of 
blasphemy."  He  quoted,  with  approval,  Starkie's  defi- 
nition :  "  The  wilful  intention  to  insult  and  mislead 
others  by  means  of  licentious  and  contumelious  abuse 
offered  to  sacred  subjects,  or  by  wilful  misrepresenta- 
tions or  wilful  sophistry,  calculated  to  mislead  the  un- 
wary, is  the  criterion  and  test  of  guilt."3 
>  If  the  matter  complained  of  is  based  upon  conscien- 
tious conviction,  and  is  not  designed  as  an  attack  upon 
the  faith  of  others,  it  is  not  generally  believed  to  be 
blasphemous,  even  though  it  may  wound  the  feelings  of 
those  who  entertain  contrary  views. 

A  publication  is  an  obscene  libel  when  its  tendency 
is  to  deprave  and  corrupt  the  minds  of  persons  reading 
it.4     It  is  no  defence  that  the  writer's  object  was  scien- 

1  The  Queen  v.  Bradlaugh,  15  Cox's  Criminal  Cases,  2T7. 

2  The  two  men  were  sentenced  to  nine  and  twelve  months'  imprisonment 
respectively  for  blasphemous  articles  and  pictures  contained  in  the  "  Christmas 
number  "  of  the  Freethinker,  1882.  (Odgers  on  Libel  and  Slander,  second  Eng- 
lish e  ition,  London,  1887,  p.  446.) 

'■'   The  Queen  i>.  Ramsey  et  a!.,  15  Cox's  Criminal  Cases,  231. 

4  l-'or  such  a  libel,  contained  in  certain  "  Fog  Horn  Stories,"  published  in 
.  Topics,  Dec.  10,  1886,  Eugene  D.  Mann,  publisher  of  the  paper,  was 
arrested  at  the  instance  of  Anthony  Comstock,  and  fined  fifty  dollars.  See  the 
New  York  Star,  May  6,  1887. 


CRIMINAL   LIBEL. 


87 


tific  or  philanthropic,  if  the  matter  is  so  published  that 
it  is  likely  to  fall  into  the  hands  of  persons  to  whom  it 
will  be  of  no  value  scientifically  or  otherwise,  but  whose 
minds  will  be  contaminated  by  its  perusal. 

Where  a  prosecution  is  for  an  alleged  seditious, 
blasphemous,  or  obscene  libel,  the  defendant  cannot 
give  evidence  in  defence  that  the  publication  is  true.1 
And  a  full  and  impartial  report  of  such  a  trial  would 
not  be  privileged  if  the  reporter  set  forth  in  his  copy 
the  blasphemous,  obscene,  or  seditious  matter  upon 
which  the  trial  is  based."2  Indeed,  it  has  been  held  that 
even  an  indictment  need  not  set  forth  the  subject- 
matter  of  the  libel  when  it  is  charged  with  being 
obscene.3  But  it  is  not  enough  to  charge  the  defend- 
ant in  the  indictment  with  publishing  "  an  indecent  and 
obscene  newspaper,  called  John  Donkey,  manifestly 
designed  to  corrupt  the  morals  of  the  youth  of  said 
county  "  ;  but  the  language  charged  with  being  obscene 
must  be  sufficiently  described  to  enable  the  Court  to 
judge  of  its  character.4 

The  old  maxim,  "  the  greater  the  truth,  the  greater  the 
libel,"  which  was  formerly  applied  to  libels  when  con- 
sidered as  crimes,  brought  the  law  into  contempt.  It 
was  always  an  outrageous  doctrine,  and  it  was  none  the 
less  a  reproach  upon  the  law  that  its  original  authorship 
was  ascribed  to  so  eminent  a  jurist  as  Sir  Matthew 
Hale.  The  doctrine  grew  out  of  the  theory  upon 
which  the  criminality  of  libels  is  based  ;  viz.,  the  ten- 

1  Folkard's  Starkie  on  Slander  and  Libel,  p.  720.  The  Sedition  Law  of 
July  14,  1798,  has  been  regarded  as  declaratory  of  the  sense  of  Congress  that  in 
prosecutions  for  libels  upon  the  government  the  defendant  ought  to  be  allowed  to 
show  the  truth  in  justification.     Greenleaf  on  Evidence,  vol.  III.,  §  177. 

2  See  Chap.  VII.  on  Privileged  Publications 

sThe  People  v.  Girardin  et  al.  (Detroit  City  Argus),  1  Mich.  (1848),  90. 
*  The  State  v.  Charles  H.  Hanson,  23  Texas  (1859),  232- 


88  NEWSPAPER   LIBEL. 

dency  of  the  defamatory  matter  to  provoke  a  breach  of 
the  peace.  It  was  assumed  that  defamatory  charges 
would  have  an  increased  tendency  to  excite  the  person 
against  whom  they  were  directed  to  acts  of  violence  if 
the  charges  were  true.  The  maxim  stands  about  on  a 
par  with  the  schoolboy's  byword.  "  you  must  n't  twit 
on  facts." 

The  Supreme  Court  of  New  York,  in  1804,  sustained 
the  common  law  doctrine  that  the  truth  could  not  be 
pleaded  in  justification  of  a  criminal  libel,  but  the 
Legislature  of  the  State,  in  1805,  enacted  that  the  truth 
might  be  given  in  evidence  in  defence  when  the  matter 
upon  which  the  prosecution  was  based  was  published 
"with  good  motives  and  for  justifiable  ends."  This 
legislation  in  New  York  was  followed  by  similar  statutes 
or  constitutional  provisions  or  decisions  of  the  courts 
in  all  the  other  States,  so  that  now  the  maxim,  "the 
greater  the  truth,  the  greater  the  libel,"  no  longer  ex- 
presses the  law  in  any  State  in  the  Union.1  The  reform 
in  the  law  was  not  effected  in  Massachusetts  until  1826, 
and  that  it  was  of  still  later  date  in  Connecticut  is 
shown  by  an  extract  from  the  autobiography  of  P.  T. 
Barnum. 

Mr.  Barnum  was  editor  and  publisher  of  a  weekly 
newspaper  in  Danbury,  Conn.,  called  the  Herald  of 
Freedom,  from  183 1  until  1834.  He  was  sentenced  to 
pay  a  fine  of  $100  and  to  be  imprisoned  sixty  days  in 
the  common  jail  for  criminal  libel  under  the  following 
circumstances  :  — 

I  was  indicted  [says  Mr.  Barnum]  for  informing  the  readers 
of  my  paper,  that  a  certain  lay  dignitary  of   a  church  in 
Bethel  had  "  been  guilty  of  taking  usury  of  an  orphan  boy." 
1  See  ante,  pp.  20-22.     See  also  Chap.  IX.  on  Defences. 


CRIMINAL   LIBEL.  89 

The  general  fact  was  accompanied  by  severe  editorial  com- 
mentary, and  criminal  prosecution  was  instituted  against 
me.  The  case  came  to  trial,  and  several  witnesses,  includ- 
ing the  party  accused,  proved  substantially  the  truth  of  my 
statement.  But,  alas  !  "the  greater  the  truth,  the  greater  the 
libel." 

After  recounting  the  circumstances  of  his  imprison- 
ment, during  which  he  edited  his  paper  as  usual  and 
"received  several  hundred  additional  subscriptions,"  he 
gives  the  following  extract  from  the  Herald  of  Freedom 
of  December  12,  1832,  regarding  his  return  home  from 
jail  :  — 

P.  T.  Barxum  and  the  band  of  music  took  their  seats  in 
a  coach  drawn  by  six  horses,  which  had  been  prepared  for 
the  occasion.  The  coach  was  preceded  by  forty  horsemen, 
and  a  marshal,  bearing  the  national  standard.  Immediately 
in  the  rear  of  the  coach  was  the  carriage  of  the  Orator  and 
the  President  of  the  day,  followed  by  the  Committee  of 
Arrangements  and  sixty  carriages  of  citizens,  which  joined 
in  escorting  the  editor  to  his  home  in  Bethel.  .  .  . 

He  adds  in  conclusion:  — 

No  one  will  be  surprised  that  I  should  have  regarded 
such  a  return  to  my  home  and  family  as  a  triumphal  march. 
It  was  in  effect  a  vindication,  because  an  approval  of  my 
course,  and  a  condemnation  both  of  the  "common  law  of 
libel,"  and  of  all  who  had  been  engaged  in  my  prosecution. 

In  a  few  of  the  States1  the  truth  is  a  complete  defence 
in  criminal  prosecutions  for  libels  upon  individuals,  ex- 
actly as  in  civil  actions  for  damages ;  in  most  of  the 
others  the  statutes  or  decisions  of  the  courts  declare  the 

1  Arkansas,  Connecticut,  Georgia,  Indiana,  Maryland,  Mississippi,  Missouri, 
New  Jersey,  North  Carolina,  Tennessee,  and  Vermont ;  so  also  in  the  District  of 
Columbia. 


go  NEWSPAPER   LIBEL. 

truth  an  absolute  defence  only  when  the  alleged  libel  was 
published  "  with  good  motives  and  for  justifiable  ends." 
The  rule  thus  qualified  was  recognized  in  the  case  of 
Thomas  D.  Bonner,  of  the  Pittsfielcl,  Mass.,  New  Eng- 
land Cataract,  who  was  prosecuted  for  publishing  the 
following:  — 

However,  there  were  a  few  who,  according  to  the  old 
topers'  dictionary,  were  drunk  ;  yea,  in  all  conscience,  drunk 
as  a  drunken  man ;  and  who,  and  which  of  you,  desperadoes 
of  the  town,  got  them  so  ?  Was  it  you,  whose  groggery  was 
open,  and  the  rat  soup  measured  out,  at  your  bar,  to  drunk- 
ards, while  a  daughter  lay  a  corpse  in  your  house,  and  even 
on  the  day  she  was  laid  in  her  cold  and  silent  grave,  a  victim 
of  God's  chastening  rod  upon  your  guilty  drunkard-manu- 
facturing head  ?  Was  it  you,  who  refused  to  close  your 
drunkery  on  the  day  that  your  aged  father  was  laid  in  the 
narrow  house  appointed  for  all  living,  and  which  must  ere- 
long receive  your  recreant  carcass  ?  We  ask  again,  was  it 
you  ?   was  it  you  ? 

At  the  trial  in  the  lower  court  the  judge  charged  the 
jury  that  the  burden  of  proof  was  on  the  defendant  to 
show  the  truth  of  the  charges,  and  also  to  prove  that 
the  charges  were  published  with  good  motives  and  for 
justifiable  ends,  and  this  construction  of  the  law  was 
sustained  in  the  Supreme  Judicial  Court.1  Mr.  Bonner 
was  convicted.  The  rule  in  this  case  now  prevails  in 
nearly  all  the  States.  In  Massachusetts,  however,  the 
law  was  changed  by  the  statute  of  1855,  and  now  the 
truth  is  declared  a  sufficient  justification,  "  unless  mali- 
cious intention  is  proved." 2  This  change  throws  the 
burden  of  proving  malicious  intention  upon  the  govern- 
ment. 

1  Commonwealth  v.  Bonner,  9  Metcalf  (1845),  410. 

2  Public  Statutes,  chap.  214,  §  13 


CRIMINAL   LIBEL.  9I 

Though  the  truth  alone  is  no  defence  in  criminal 
libel,  evidence  that  the  publication  was  true,  or  that  the 
writer  or  publisher  believed  it  to  be  true,  will  tend  in 
mitigation  of  punishment  in  case  of  conviction.  And 
"  if  a  publication  be  proper  and  meritorious,  the  fact 
that  malice  contributed  to  its  concoction  does  not  make 
it  a  libel  "  » 

If  the  truth  is  the  ground  of  defence,  the  proof  must 
be  as  broad  as  the  charge.  The  justification  must  relate 
strictly  to  the  charges  contained  in  the  alleged  libel, 
and  not  to  some  distinct  though  similar  matter ;  and 
the  truth  of  one  of  many  charges  will  not  avail  in 
defence. 

Patrick  Ford,  editor  of  the  Irish  World,  instituted 
criminal  proceedings  against  Patrick  Rellihan,  editor  of 
Ireland's  liberator,  on  account  of  an  article  published 
in  the  latter  paper  in  October,  1884,  under  the  following 
heading:  — 

Judas  Iscariot  Ford.  —  The  Evil  Genius  of  the  Irish 
Movement  Reviewed  and  Exposed — Facts  About  His  Pri- 
vate Life  that  Cannot  be  Disproved — His  Attack  on  Catho- 
licity and  His  Attempts  to  Lead  an  Independent  Bolt  fro?n 
the  Church  —  Deserter,  Betrayer,  Infidel,  Freemason,  Sham 
Reformer,  Swindler  of  the  Emergency  Fund,  Would-be  Dic- 
tator and  Political  Prostitute  /  — His  Conduct  in  the  O"1  Don- 
it  ell  Case  and  His  Shameful  Treat  me  tit  of  Susan  Gallagher 
—  Starvation  Wages  in  the  Irish  World  Office  —  Ford 
Betrays  General  Butler  and  the  Greenback  Party,  and  In- 
sults Every  Irish  Democrat  by  the  Sale  of  Blaine. 

After  quoting  this  "  scare  head  "  it  is  comparatively 
immaterial  what  constituted  the  substance  of  the  arti- 
cle itself,  but  it  may  be  added  that  the  principal  charge 

1  Wharton's  Criminal  Law,  vol.  II.,  §  1654. 


92 


NEWSPAPER   LIBEL. 


was  that  Ford  had  used  a  balance  of  $32,000  of  the 
O'Donnell  defence  fund  in  paying  his  private  debts. 
Upon  the  witness-stand  Rellihan  admitted  that  his  only 
reason  for  believing  that  Ford  paid  his  debts  from  the 
O'Donnell  fund  was  that  Ford  had  no  money  of  his  own 
with  which  to  pay  them,  and  upon  this  admission  Relli- 
han was  convicted,  and  sentenced  to  two  months'  im- 
prisonment.1 

At  the  same  time  that  the  law  was  so  reformed  that 
the  truth  might  be  pleaded  in  defence  in  criminal  pros- 
ecutions for  libel,  another  reform  was  also  effected. 
Prior  to  that  time  the  judges  had  always  assumed  the 
authority  to  determine  whether  the  matter  complained 
of  was  in  reality  libellous,  the  only  question  left  for  the 
jury  being  whether  the  defendant  had  published  the 
matter  as  charged  in  the  indictment.  Throughout  the 
United  States,  however,  as  the  law  now  stands,  the 
jury  is  authorized  to  find  a  general  verdict  of  guilty  or 
not  guilty,  thus  reserving  for  them  the  question  whether 
the  publication  is  unlawful  and  whether  the  defendant 
is  legally  responsible  for  it.  In  New  York,  indeed,  the 
jury  is  not  allowed  to  find  a  special  verdict  in  a  prose- 
cution for  libel.2  The  question  of  the  relative  prov- 
inces of  judge  and  jury  was  raised  in  the  case  of  the 
Commonwealth  v.  McClure  et  al.  in  Pennsylvania.  The 
Philadelphia  Times  published,  April  25,  1876,  charges 
against  Nathaniel  McKay  of  wrongful  appropriation  of 
government  property.  At  the  trial  of  the  publishers  of 
the  Times,  Judge  Thayer  said,  in  charging  the  jury  : 
ii  Some  pains  have  bee»  taken  to  impress  upon  you  the 
fact  that  you  have  a  right  to  render  such  a  verdict  as 

1  See  daily  papers  of  Jan.  24,  Feb.  7,  and  March  27,  1885. 

2  Code  of  Criminal  Procedure,  §  436. 


CRIMINAL   LIBEL. 


93 


you  choose,  and  that  you  are  not  to  be  subject  to  the 
control  of  the  Court.  That  is  a  very  old  controversy, 
gentlemen,  and  one  long  since  settled.  .  .  .  You  have 
an  undoubted  right  to  return  a  general  verdict,  for 
which  you  are  answerable  only  to  your  own  con- 
sciences." 1  But,  as  stated  by  the  Court  in  a  case  in 
California,  "while  in  actions  for  criminal  libei  the 
jury  are  to  determine  the  law  as  well  as  the  facts,  they 
are,  of  course,  not  at  liberty  to  determine  that  what 
the  statute  declares  to  be  a  criminal  libel  is  not  such."2 
The  same  evidence  of  publication  is  required  to  sus- 
tain an  indictment  for  libel  as  in  the  case  of  a  civil 
action.  Every  sale  of  a  copy  of  the  newspaper  contain- 
ing the  libel  is  a  fresh  crime,  and  the  courts  generally, 
in  imposing  sentence,  take  into  consideration  the  ex- 
tent to  which  the  defendant  has  been  the  means  of  dis- 
seminating the  defamation.  They  will  not,  however, 
impose  a  cumulative  sentence,  with  an  added  penalty  for 
each  and  every  sale  of  a  copy  of  the  paper,  even  though 
the  indictment  contain  a  separate  count  for  every  such 
sale.  Evidence  that  the  copy  of  the  newspaper  upon 
which  the  prosecution  is  based  was  purchased  of  a  per- 
son employed  at  the  newspaper  office,  or  of  an  em- 
ployee of  the  news  agent,  in  the  regular  course  of  busi- 
ness, will  sustain  a  charge  against  the  news'  agent  or 
the  proprietor  of  the  paper  of  publishing  the  libel,  even 
though  it  is  proved  that  the  employer  had  no  actual 
knowledge  of  the  sale.  The  charge  may  be  rebutted 
only  by  showing  that  the  proprietor  or  news  agent  did 
not  authorize  the  sale,  and  was  in  no  wise  guilty  of  neg 
ligence,  but  the  burden  of  proof  in  such  case  is  upon 

1  Commonwealth  v.  McClure  et  aL,  n  Philadelphia  Reports,  469. 

2  People  v.  Henry  B.  McDowell,  71  Cal.  (1886),  194. 

5* 


94 


NEWSPAPER   LIBEL. 


the  defendant.  "The  mere  delivery  of  a  libel  to  a 
third  person  by  one  conscious  of  its  contents  amounts 
to  a  publication,  and  is  an  indictable  offence."  x 

It  is  a  crime  in  any  State  to  circulate  a  libel  there 
which  was  printed  in  another  jurisdiction.  James 
Blanding,  a  resident  of  Massachusetts,  caused  the  pub- 
lication of  a  libel  in  the  Providence,  R.  I.,  Gazette. 
Copies  of  the  Gazette  containing  the  libel  were  circu- 
lated in  Massachusetts,  and  this  fact  was  held  sufficient 
to  sustain  an  indictment  of  Mr.  Blanding  in  the  latter 
State.2 

A  person  may  be  indicted  for  libel  where  he  merely 
related  the  defamatory  matter  to  a  reporter  in  an  inter- 
view.3 

The  remedy  in  case  of  criminal  libel  is  by  indictment, 
or,  in  some  States,  by  criminal  information.  The  ut- 
most precision  is  absolutely  necessary  in  drawing  up  the 
indictment,  and  the  subject-matter  of  the  libel  must  be 
literally  set  forth,  except,  as  has  been  seen,  when  the  de- 
fendant is  charged  with  publishing  an  obscene  libel,  when 
it  may  be  omitted  from  the  indictment  altogether.  The 
carelessness  of  clerks  in  district  attorneys'  offices  has 
come  to  the  timely  relief  of  many  newspaper  editors 
and  publishers.  An  instance  of  this  good  luck  occurred 
in  Vermont  some  twenty  years  ago.  Hiram  Atkins,  of 
the  Montpelier  Argus  and  Patriot,  was  indicted  for  pub- 
lishing the  following,  August  10,  1865  :  — 

One  other  political  bruiser  we  like  to  have  forgotten  — 
but  had  we  done  so  that  face  would  have  haunted  our 
dreams  ever  more.     That  one  is  "  Uncle  Nat.  Eaton,"  for- 

1  Odgers  on  Libel  and  Slander,  p.  384. 

2  Commonwealth  v.  Blanding,  3  Pickering  (1822),  304.  See  also  the  Cutting 
case  in  Chap.  V.  on  Publication. 

sThe  People  v.  Clay,  86  111.  (1877),  147.  See  this  case  cited  at  length  in 
Chap,  V.  on  Publication. 


CRIMINAL   LIBEL.  95 

merly  of  Calais,  but  now  "  Mugwump  "  No.  2,  of  Middlesex. 
This  old  political  roue'  was  about  town  all  day  in  full  blast, 
notwithstanding  that  the  corpse  of  his  dead  wife  was  lying 
in  his  house  at  home.  ...  If  a  dead  nigger  had  been  in  his 
house,  the  old  hypocrite  would  probably  have  been  heard  of 
sitting  in  his  back  kitchen,  clothed  in  sackcloth  and  ashes  ; 
but  as  it  was  only  his  wife,  what  did  it  matter  ?  .  .   . 

The  indictment  set  forth  —  "that  Hiram  Atkins,  of 
Montpelier,  in  the  county  of  Washington,  being  a  per- 
son of  an  envious,  evil,  and  wicked  mind,  and  of  a  most 
malicious  disposition,  and  wickedly,  maliciously,  and 
unlawfully  intending  and  contriving,  as  much  as  in  him 
lay,  to  injure,  oppress,  aggrieve,  and  vilify  the  good 
name,  fame,  credit,  and  reputation  of  Nathaniel  Eaton, 
...  to  cause  it  to  be  suspected  and  believed  by  the 
citizens  of  this  State,  that  the  said  Nathaniel  Eaton, 
whose  wife  had  died  on  the  last  day  of  July  before  that 
time.,  attended  a  political  convention  all  day,  while  his  wife 
was  lying  dead  in  his,  the  said  Eaton's,  house,  wickedly, 
maliciously,  and  wilfully  did  compose  and  write"  — 
the  libel  above  quoted.  The  Supreme  Court  of  Ver- 
mont held  that  the  publication  was  libellous,  but  inas- 
much as  the  indictment  did  not  formally  aver  that  a 
political  convention  was  in  fact  held  on  the  day  alleged, 
the  meaning  of  the  libel  could  not  be  ascertained  with 
due  legal  precision,  and  the  indictment  was  ordered 
quashed.1 

Where  the  prosecution  is  for  a  libel  upon  an  individ- 
ual, it  is  not  composition  of  felony  for  the  prosecutor 
to  settle  with  the  defendant  out  of  court,  accepting  an 
apology,  or  payment  of  money,  or  both,  in  satisfaction.2 

1  State  v.  Atkins,  42  Vt.  252. 

2  Folkard's  Starkie  on  Slander  and  Libel,  p.  729. 


96 


NEWSPAPER   LIBEL. 


The  maximum  penalty  in  case  of  conviction  for  crim- 
inal libel  is  as  follows  in  the  several  States  and  Terri- 
tories :  — 


Alabama  ' 

Arizona 

Arkansas 

California 

Colorado 

Connecticut 

Dakota 

Florida 

Georgia  2 

Idaho  

Illinois 

Indiana3 

Iowa 

Kansas 

Maine 

Michigan  4  

Missouri 

Montana 

Nebraska "' 

Nevada 

New  York 

Ohio 

Oregon" 

Pennsylvania 

Rhode  Island 

Texas  "• 

Utah 

Washington  Territory. . 

Wisconsin 

Wyoming 


Fine. 

$500 

and 

5,000 

or 

5,000 

and 

5,000 

or 

500 

or 

500 

500 

1,000 

and 
and 
and 

1,000 

and 

5,000 

or 

500 

or 

1,000 

and 

1,000 

or 

1,000 

or 

1,000 

and 

TOO 

and 

200 

and 

5,000 

or 

500 

and 

5,000 

or 

500 

and 

500 

and 

5OO 
1,000 

or 

and 

I,O0O 

or 

2,000 

or 

IjOOO 

or 

1,000 

and 

250 

or 

500 

or 

Imprisonment. 


Six  months, 
One  year, 
One  year. 
One  year, 
One  year, 
One  year. 
One  year, 
One  year, 
Six  months. 
Six  months, 
One  year, 
One  year, 
One  year, 
One  year, 
Less  than  one  year, 
Ninety  days, 
Six  months, 
Six  months, 
Six  months, 
Six  months, 
One  year, 
Six  months. 
One  year. 
Twelve  months. 
One  year, 
Two  years, 
One  year, 
One  year, 
One  year, 
One  year, 


Where 
Imprisoned. 


County  jail. 
Territorial  prison. 

County  jail. 
Penitentiary. 

County  jail. 
County  jail. 

County  jail. 
County  jail. 
County  jail. 
County  jail. 
County  jail. 

County  jail. 
County  jail. 
County  jail. 
County  jail. 
County  jail. 
Penitentiary  or  jail. 

County  jail. 


County  jail. 
County  jail. 
County  jail. 
County  jail. 
Penitentiary. 


1  Or  "  hard  labor  for  the  county  "  not  exceeding  six  months. 

2  Or  "  to  work  in  the  chain  gang  .  .  .  not  to  exceed  twelve  months." 

3  The  fine  shall  be  not  less  than  five  dollars,  and  in  case  imprisonment  is  added 
it  shall  be  for  a  term  not  less  than  ten  days. 

4  For  a  second  or  subsequent  offence  the  prisoner  shall  be  fined  not  less  than 
fifty  dollars  nor  more  than  five  hundred  dollars  and  costs,  or  imprisoned  in  the 
State  house  of  correction  not  more  than  three  years,  or  both  fined  and  impris- 
oned. 

8  "  Provided  that  if  the  said  libel  is  published  in  a  newspaper  having  a  gen- 
eral circulation,  the  person  so  offending  shall  be  punished  by  imprisonment  in 
the  penitentiary,  not  less  than  one  nor  more  than  three  years."  —  Chap.  104, 
General  Laws  of  1887. 

0  The  fine  shall  be  not  less  than  one  hundred  dollars,  or  in  case  of  imprison- 
ment it  shall  be  for  a  term  not  less  than  three  month  s. 

7  In  case  of  fine  it  shall  be  not  less  than  one  hundred  dollars. 


CRIMINAL   LIBEL. 


97 


The  foregoing  table  includes  all  the  States  and  Terri- 
tories in  which  special  provision  is  made  by  statute  for 
punishment  for  criminal  libel.  In  Massachusetts  this 
offence  comes  within  the  following  section  of  the  Public 
Statutes  :  "  In  cases  of  legal  conviction,  where  no  punish- 
ment is  provided  by  statute,  the  Court  shall  award  such 
sentence  as  is  conformable  to  the  common  usage  and 
practice  in  this  State,  according  to  the  nature  of  the 
offence,  and  not  repugnant  to  the  constitution."1 
Criminal  libel  is  similarly  provided  for  in  many  of  the 
other  States.  In  Louisiana  the  punishment  is  by  "  fine 
or  imprisonment,  or  both,  at  the  discretion  of  the 
Court,"  ~  and  the  judge  has  express  power  to  sentence 
any  person  convicted  of  a  fourth  offence  to  perpetual 
imprisonment.3 

The  criminal  remedy  for  libel  is  much  older  than  the 
civil,  and  it  is  generally  the  more  advisable  means  of 
redress  where  vindication  of  character  and  not  com- 
pensation for  injury  is  the  object  to  be  sought ;  but 
lawyers  who  have  an  eye  to  a  bill  of  costs  will  continue 
to  advise  clients  to  institute  a  civil  action.  Generally 
speaking,  a  civil  action  for  libel  is  "  a  dangerous  experi- 
ment." In  a  large  majority  of  cases  the  plaintiff,  after 
advertising  to  all  the  world  that  he  is  willing  to  sell  his 
reputation  for  money,  discovers  that  his  reputation 
won't  bring  enough  after  all  to  more  than  pay  his 
counsel  fees. 

As  has  been  already  shown,  the  author  or  publisher 
of  a  libel  is  subject  to  both  civil  and  criminal  liability 
for   the   same    publication.     Where    punitive   damages 

1  Public  Statutes,  chap.  215,  sec.  1. 

2  Revised  statutes,  sec.  804. 

3  Revised  statutes,  sec.  974. 


g8  NEWSPAPER    LIBEL. 

have  been  recovered  in  a  civil  action,  however,  and  the 
same  defendant  is  convicted  of  criminal  libel  for  the 
same  publication,  the  judge  in  passing  sentence  would 
take  into  consideration  the  damages  already  recovered 
as  a  portion  of  the  penalty ;  and  where  the  libeller  has 
already  satisfied  the  criminal  law,  a  jury  in  a  civil  action 
would  not  ordinarily  award  punitive  damages.  In  all 
cases  of  libels  upon  individuals  it  would  seem  that  a 
single  remedy,  civil  or  criminal,  would  satisfy  the  de- 
mands of  justice.  According  to  the  English  practice, 
any  person  applying  for  a  criminal  information  against 
another  for  a  libel  must  forego  his  civil  remedy  ;  and 
if  he  has  already  commenced  an  action  for  damages  the 
information  will  not  be  granted.  Upon  similar  princi- 
ples it  would  seem  that  neither  the  rights  of  the  indi- 
vidual nor  of  the  public  would  suffer  if  it  were  allowed 
the  defendant  in  a  civil  action  for  libel  to  show  as  a  bar 
to  the  action  that  he  has  already  suffered  conviction 
upon  an  indictment  for  'the  same  libel  found  at  the 
instance  of  the  person  appearing  as  plaintiff  in  the  civil 
suit.  On  the  other  hand,  it  would  seem  that  it  should 
be  permitted  the  defendant  at  his  trial  upon  an  indict- 
ment for  libel  to  plead  in  bar  that  he  had  already  satis- 
fied a  civil  judgment  for  punitive  damages  on  account 
of  the  same  defamatory  publication.  This,  however, 
is  not  the  law  as  it  is  in  this  country,  but  as,  in  the 
opinion  of  the  writer,  it  should  be. 


LIBELS    AS    CONTEMPTS    OF    COURT. 


99 


CHAPTER   IV. 

LIBELS   AS   CONTEMPTS    OF    COURT. 

Having  considered  libels  in  their  various  ordinary 
relations  as  private  wrongs  and  as  crimes,  it  remains  to 
consider  them  in  their  occasional  aspect  as  contempts  of 
court.  The  latter  is,  indeed,  a  branch  of  the  criminal 
law;  but  the  mode  of  appeasing  offended  justice  by  pro- 
ceedings in  contempt  is  so  radically  different  from  the 
proceedings  by  indictment,  that  the  subject  may  well  be 
independently  treated. 

Courts  are  said  to  possess  an  inherent  power  to  pun- 
ish not  only  contempts  of  their  rules  and  orders,  but 
also  any  conduct  tending  to  disturb  them  in  their  pro- 
ceedings or  to  impair  the  respect  due  to  their  authority, 
and  legislative  bodies  possess  the  same  powers  as 
courts  in  this  respect.1  But  "the  courts  have  unques- 
tioned power  to  decide  upon  the  validity  of  a  commit- 
ment for  contempt  by  a  legislative  body,  i.  e.,  to  pass 
upon  the  question  whether  the  Legislature  acted  within 
its  jurisdiction  in  the  particular  case."  ~ 

In  its  issue  for  Sunday,  February  27,  1887,  the  San 
Antonio  Express  published  a  somewhat  uncompliment- 
ary description  of  the  members  of  the  Twentieth  Texas 
Legislature. 

'  Wharton's  Criminal  Law,  vol.  II.,  §  1613. 
2  Rapalje  on  Contempts,  p.  4. 


ioo  NEWSPAPER   LIBEL. 

It  has  been  the  custom  of  Capital  artists  to  photograph 
the  previous  bodies  which  have  drawn  the  people's  money 
in  these  kalsominal  halls.  Before  the  dread  vision  of  the 
Twentieth  they  have  fallen  back  appalled.  Retreating  fore- 
heads, tousled  hair,  unshaven  faces,  soiled  shirts,  guiltless 
of  collars,  white-seamed  coats,  pants  that  bag  at  the  knees 
with  a  terrible  bagginess,  shoes  which  are  fashioned  on  the 
generous  principle  of  the  room-for-one-more  street-car,  shock- 
ing bad  hats  and  a  general  air  of  that  uncleanliness  which  is 
next  to  the  devil;  lips  stained  with  tobacco  saliva;  teeth 
which  are  not;  bulge-knuckled  hands,  whose  symmetry  is 
among  the  sweet  might-have-beens  that  may  not  be  ;  and, 
high  over  all,  first  and  foremost  always,  accentuated  by  wag- 
ging heads  and  their  own  involuntary  movement,  long  drawn 
out  and  ponderous  ears,  whose  slow,  swaying  pendulosity 
marks  the  intellectual  status  of  their  owners,  are  too  much, 
—  yes,  yes,  entirely  too  much.  .  .  . 

For  thus  "  holding  the  mirror  up  to  nature,"  Mr. 
Canfield,  Austin  correspondent  of  the  Express,  was  on 
the  following  day  expelled  from  the  Representative 
Chamber,  under  a  resolution,  which,  after  numerous 
whereases,  read  as  follows  :  — 

Resolved,  That  H.  S.  Canfield,  who  is  understood  to  be 
the  writer  of  such  libellous  articles,  be  excluded  from  the 
reporters'  tables  and  the  hall,  and  that  the  doorkeeper  and 
sergeant-at-arms  be  instructed  to  refuse  him  admittance. 

This  resolution  was  adopted  by  a  vote  of  61  to  24. 
Speaker  Pendleton  ruled  that  it  debarred  the  corre- 
spondent entrance  to  the  lobby.  Some  days  later,  on 
entering  the  lobby,  he  was  ejected  by  Assistant  Sergeant- 
at-Arms  Montgomery  by  order  of  the  speaker.  There- 
upon Mr.  Canfield  swore  out  warrants  for  the  arrest  of 
Pendleton  and  Montgomery  for  assault.  While  the 
trial   was  in  progress,  the  justice  who  issued  the  war- 


LIBELS   AS   CONTEMPTS   OF  COURT.  IOi 

rants,  and  the  officer  who  served  them,  together  with  the 
correspondent,  were  all  summoned  to  the  bar  of  the 
House  for  contempt.  The  justice  and  the  constable 
were  discharged,  but  Mr.  Canfield  was  sent  to  jail  for 
forty-eight  hours,  by  a  vote  of  59  to  21.  It  was  argued, 
on  behalf  of  the  respondents,  that  the  speaker  and 
sergeant-at-arms  were  not  arrested  while  the  House  was 
in  session,  and  that  their  arrest  did  not  impede  legisla- 
tive business.  Mr.  Canfield  has  sued  the  fifty-nine 
members  who  voted  for  his  imprisonment,  and  the  ser 
geant-at-arms,  for  damages  aggregating  $110,025.  The 
act  of  contempt  for  which  he  was  imprisoned  was  not 
the  libellous  publication,  but  the  prosecution  instituted 
by  him  against  officers  of  the  House. 

The  power  of  courts  to  punish  for  contempts, 
where  it  has  not  been  restricted  by  statute,  has  gener- 
ally been  held  to  extend  to  the  punishment  by  summary 
process  of  reporters,  editors,  and  publishers  of  news- 
papers, for  the  publication  of  matter  which  in  the 
opinion  of  the  Court  tended  to  corrupt  the  sources  of 
justice,  or  to  diminish  public  respect  for  its  administra- 
tion. The  power  of  inferior  courts  to  punish  for  con- 
tempt does  not  generally  extend  beyond  contempts 
committed  in  their  immediate  presence ;  but  in  the 
higher  tribunals  the  power  is  very  broad.  As  a  general 
rule,  no  court  can  review  an  adjudication  of  a  con- 
tempt by  another  court  of  competent  jurisdiction. 
Owing  to  the  exceptional  character  of  this  power,  how- 
ever, the  principles  of  law  governing  its  exercise  are 
somewhat  ill-defined,  and  the  decisions  conflicting. 

As  will  be  seen  in  the  chapter  on  Privileged  Publi- 
cations, the  press  is  granted  immunity  from  responsi- 
bility for  fair,  accurate,  and  impartial    reports  of   pro- 


102  NEWSPAPER   LIBEL. 

ceedings  held  in  open  court,  and  for  comments  of  an 
editorial  nature  upon  such  proceedings  and  upon  the 
manner  of  administering  justice,  provided  the  com- 
ments are  made  fairly  and  in  good  faith.  If  the  editor, 
however,  criticises  the  court  or  any  of  its  officers 
unjustly  or  intemperately,  or  if  the  reporter  publishes  a 
false  or  unfair  report,  during  the  pendency  of  an  action, 
tending  to  prejudice  the  public  or  the  jury  in  the  case, 
the  editor  or  reporter  would  be  guilty  of  contempt. 

It  has  also  been  claimed  as  a  prerogative  of  the 
courts  at  common  law  to  determine  whether  proceed- 
ings before  them  should  be  published  ;  but  in  modern 
times  such  publication  is  rarely  prohibited.  A  publica- 
tion in  defiance  of  such  prohibition  would  be  a  con- 
tempt of  court.1  "  So  recently  as  1867  a  justice  of  the 
Superior  Court  of  the  city  of  New  York  prohibited  the 
publication  of  proceedings  had  before  him,  and  his 
course  was  approved  by  the  other  justices  of  that 
court."  2  Under  the  following  section  of  the  New  York 
Penal  Code,  it  would  seem,  such  a  prohibition  would 
now  be  inoperative  :  — 

§  143.  —  A  person  who  commits  a  contempt  of  court,  of 
any  one  of  the  following  kinds,  is  guilty  of  a  misdemeanor : 
...  7.  —  Publication  of  a  false  or  grossly  inaccurate  report 
of  its  proceedings.  But  no  person  can  be  punished  as  pro- 
vided in  this  section,  for  publishing  a  true,  full  and  fair 
report  of  a  trial,  argument,  decision  or  other  proceeding  had 
in  court. 

During  a  divorce  trial  in  the  Superior  Court  in  San 
Francisco  the  Examiner  published  full  reports  of  the 
testimony,  although   the   hearing  was  held  with  closed 

1  Bishop  on  Criminal  Law,  vol.  II.,  §259. 

2  Townshend  on  Slander  and  Libel  (1877;,  §  231,  note. 


LIBELS   AS   CONTEMPTS   OF  COURT.  103 

doors.  The  judge  issued  strict  orders  to  the  officers  of 
the  court  and  to  the  witnesses  not  to  divulge  any  of  the 
proceedings.  The  Examiner  continued  to  report  the 
trial  in  full.  Felix  J.  Zeehandelaar,  who  was  writing 
the  court  proceedings  for  the  Examiner,  was  cited  to 
appear,  and  was  asked  where  he  got  his  information. 
He  refused  to  answer  the  questions,  and  was  adjudged 
guilty  of  contempt  of  court,  and  was  remanded  to  the 
custody  of  the  sheriff.  A  writ  of  habeas  corpus  was 
then  taken  out,  and  the  matter  argued  before  Judge 
Maguire,  who  also  remanded  the  reporter.  The  case 
was  then  taken  to  the  Supreme  Court,  and  an  order 
was  made  setting  aside  the  commitment.  The  chief 
reason  given  for  the  discharge  was  that  the  questions 
Zeehandelaar  refused  to  answer  were  not  pertinent  to 
any  matter  involved  in  any  issue  then  before  the  court, 
therefore  his  refusal  to  answer  did  not  constitute  a  con- 
tempt.1 

In  the  Federal  courts  the  power  to  punish  contempts, 
according  to  section  725  of  the  Revised  Statutes, 
"  shall  not  be  construed  to  extend  to  any  cases  except 
the  misbehavior  of  any  person  in  their  presence,  or  so 
near  thereto  as  to  obstruct  the  administration  of  jus- 
tice." Justice  Baldwin,  of  the  Circuit  Court  of  the 
United  States,  during  the  trial  of  a  manslaughter  case 
in  Philadelphia  in  1842,  in  which  great  public  interest 
was  manifested,  held  that  under  the  statute,  which  at 
that  time  was  in  substantially  the  same  form  as  at 
present,  the  Court  had  no  power  to  punish  as  for  con- 
tempt the  publication  of  testimony  pending  the  trial. 
The  judge  intimated,  however,  that  the  Court  could 
regulate  the  admission  of  persons  to  the  room  where 

1  The  Journalist,  Nov.  13,  1886. 


104 


NEWSPAPER   LIBEL. 


the  trial  was  in  progress,  and  the  representatives  of  the 
Philadelphia  newspapers  took  the  hint.  "  The  report- 
ers expressed  their  acquiescence  in  this  order  of  the 
Court,"  adds  the  author  of  the  report,  "  and  the  most 
respectful  silence  on  the  part  of  the  press  prevailed 
during  the  whole  trial."  x 

The  cases  are  comparatively  rare  where  reporters 
have  been  in  contempt  for  publishing  judicial  proceed- 
ings in  defiance  of  an  order  of  the  Court.  Much  more 
frequent  are  the  cases  of  contempt  where  newspaper 
writers  have  cast  reflections  on  the  conduct  of  wit- 
nesses, parties,  counsel,  jurors,  or  judges  during  the 
pendency  of  a  case,  or  in  other  ways  have  seemed  to 
the  Court  to  seek  unlawfully  to  influence  the  adminis- 
tration of  justice. 

A  famous  case  of  this  character  was  that  involving 
the  impeachment  of  Judge  Peck,  of  the  United  States 
District  Court  for  the  District  of  Missouri.  Luke 
Edward  Lawless  was  an  Irishman,  and  had  fought  in 
the  French  army  at  Waterloo.  He  was  practising  law 
in  St.  Louis  in  1826,  and  was  counsel  for  the  Soulard 
heirs  in  a  land  case  against  the  United  States.  Judge 
James  H.  Peck,  in  March  of  that  year,  published  in  the 
Missouri  Republican  an  elaborate  opinion  upon  the  case 
favorable  to  the  defendant.  Mr.  Lawless  then  pub- 
lished in  the  Inquirer,  under  the  signature  "  Citizen," 
a  respectful  criticism  of  the  opinion,  in  which  he 
pointed  out  what  he  deemed,  errors  in  the  decision,  but 
without  inpugning  the  motives  of  the  judge.  Judge 
Peck  ordered  the  editor  of  the  Inquirer,  and  later  Mr. 

1  United  States  v.  Holmes,  i  Wallace,  Jr.,  10.  See  also  the  case  of  the 
State  v.  M.  C.  Galloway  et  al.  (Memphis  Avalanche),  5  Coldwell  (Tenn. 
1868),  326. 


LIBELS   AS   CONTEMPTS   OF   COURT. 


i°5 


Lawless,  to  be  brought  into  court  on  an  attachment  for 
contempt,  and  the  unfortunate  lawyer  was  sentenced 
to  twenty-four  hours'  imprisonment  and  to  be  suspended 
from  practice  as  an  attorney  for  eighteen  months,  on 
the  ground  that  the  publication  would  tend  to  prejudice 
other  land  cases,  which  were  still  pending.  Mr.  Law- 
less was  released  on  a  writ  of  habeas  corpus  before  his 
term  of  imprisonment  expired,  and  subsequently  pre- 
ferred charges  against  Judge  Peck  before  the  Judiciary 
Committee  of  the  House  of  Representatives  at  Wash- 
ington. The  committee,  after  hearing  testimony  upon 
the  case,  voted  unanimously  to  report  articles  of  im- 
peachment against  the  judge.  Mr.  Buchanan,  chair- 
man of  the  committee  (afterwards  President),  said  in 
presenting  the  articles  to  the  House  :  — 

"  When  an  individual,  elevated  to  the  high  and  responsi- 
ble rank  of  a  judge,  forgetting  what  he  owes  to  his  own 
dignity,  to  his  country,  and  to  the  liberties  of  the  people, 
shall  by  arbitrary  and  oppressive  conduct  prostrate  the 
rights  of  a  citizen  of  this  republic,  it  is  fit  and  proper  that  he 
should  be  held  up  as  an  example  and  made  a  victim  to  the 
offended  majesty  of  the  laws.  It  is  my  deliberate  convic- 
tion that  such  has  been  the  conduct  of  Judge  Peck,  and  I 
may  add  that  similar  sentiments  were  held  by  every  member 
of  the  Judiciary  Committee." 

In  conclusion.  Mr.  Buchanan  argued  that  if  Mr. 
Lawless'  act  had  been  unlawful  he  should  have  been 
tried  before  a  jury,  whereas  Judge  Peck  had  combined 
"in  his  own  person  the  offices  of  the  prosecutor,  the 
grand  jury,  the  petit  jury,  and  the  judge."  The  im- 
peachment was  voted  by  the  House,  April  24,  1830,  and 
tried  by  the  Senate  in  December,  the  arguments  at  the 
trial  occupying  several  days,  and  engrossing  public  at- 


106  NEWSPAPER   LIBEL. 

tention  to  a  remarkable  degree.  The  vote  stood  upon 
the  question  of  conviction,  twenty-one  "guilty,"  and 
twenty-two  "  not  guilty,"  and  the  judge  was  acquitted. 
It  was  urged  on  behalf  of  the  respondent  that  the  stat- 
utes of  the  United  States  placed  no  limitation  upon  the 
power  of  the  Federal  courts  to  punish  for  contempt,  but 
this  defect  was  immediately  remedied,  in  consequence 
of  the  trial,  by  the  passage  of  the  act  already  referred 
to,1  which  was  approved  March  2,  183 1.2 

The  Supreme  Court  of  Montana  has  recently  ruled 
that  this  act  does  not  apply  to  the  Territorial  courts. 
James  A.  Murray  was  accordingly  fined  $500  for  secur- 
ing the  publication  of  the  following  despatch  in  the 
Helena  Independent,  January  11,  1887  :  — 

Cannon  and  Murphy,  real  estate  agents,  to-day  made  a 
wager  of  #500  that,  owing  to  the  influence  of  some  surface 
claimants  on  the  Smoke-House  lode,  the  Supreme  Court 
would  reverse  their  former  decision  in  the  Smoke-House 
case. 

Murray  was  a  party  to  certain  lawsuits,  some  of 
which  had  already  been  decided  in  his  favor,  and  others 
of  which  were  pending.  It  was  charged  that  he  sought 
by  means  of  the  despatch  to  influence  the  Court  to  ad- 
here to  its  former  line  of  decision.  No  money  had,  in 
fact,  been  wagered.3 

Messrs.  Steinman  and  Hensel  were  editors  of  the 
Lancaster  Daily  Intelligencer,  and  were  also  both  attor- 
neys. They  published,  January  20,  1880,  the  following 
comment  on  a  case  in  the  Court  of  Quarter  Sessions  :  — 

1  See  p.  103. 

2  See  the  Nation,  June  4,  1885;  Hudson,  Journalism  in  the  United  States, 
p.  745;  Report  of  the  Trial  of  James  H.  Peck,  by  Arthur  J.  Stansbury  (592  pp., 
Boston,  1833). 

3  Territory  v.  Murray  et  a/.,  15  Pacific  Reporter,  143. 


LIBELS   AS   CONTEMPTS   OF  COURT. 


107 


Logically,  the  last  acquittal,  like  the  first,  was  secured  by 
a  prostitution  of  the  machinery  of  justice  to  serve  the  exi- 
gencies of  the  Republican  party.  But  as  all  the  parties 
implicated,  as  well  as  the  judges,  belong  to  that  party,  the 
Court  is  unanimous  —  for  once  —  that  it  need  take  no  cogni- 
zance of  the  imposition  practised  upon  it,  and  the  disgrace 
attaching  to  it.  —  Eds.  Intelligencer. 

Neither  of  the  editors  admitted  the  authorship  of  the 
libel,  but  both  accepted  the  responsibility  as  editors, 
claiming,  however,  that  the  article  was  a  privileged 
publication,  and  that,  having  been  published  out  of 
court,  the  Court  had  no  power  to  punish  them  by  sum 
mary  process.  Judge  Patterson  of  the  Court  of  Quarter 
Sessions  found  the  two  respondents  guilty  of  misbe- 
havior in  their  office  as  members  of  the  bar,  and  or- 
dered their  names  stricken  from  the  roll  of  attorneys. 
The  Supreme  Court,  however,  on  reviewing  the  case, 
ordered  that  the  two  editor-lawyers  be  restored  to  the 
bar.  Chief  Justice  Sharswood,  in  delivering  the  opinion 
of  the  Court,  held  that  the  article  was  a  gross  libel  on 
its  face,  but  that  an  attorney  can  only  be  disbarred  for 
misconduct  respecting  his  professional  character,  and 
that  it  would  be  unconstitutional  to  deprive  him  of  his 
office  because  of  the  publication  of  a  libel  respecting 
any  matter  which  was  a  proper  subject  for  investigation.1 

The  publication  of  disparaging  comments  upon  the 
court  or  its  officers,  pending  a  trial,  is  in  most  States  a 
contempt.  The  Chicago  Evening  Journal  published 
the  following  editorial,  October  16,  1872  :  — 

The  Case  of  Raffertv.  — At  the  time  a  writ  of  super- 
sedeas was  granted  in  the  case  of  the  murderer,  Chris.  Raf- 

1  Ex  parte  A.  Jackson  Steinman  and  William  U.  Hensel,  95  Pa.  State  Re- 
ports, 220. 


108  NEWSPAPER   LIBEL. 

ferty,  the  public  was  blandly  assured  that  the  matter  would 
be  examined   into  by  the   Supreme  Court  and  decided   at 
once;  that  possibly  the    hanging  of  this  notorious   human 
butcher  would  not  bs   delayed  for  a  single  day.  .  .  .  We 
have  no  hesitancy  in  prophesying  clear  through  to  the  end 
just  what  will  be  done  with  Rafferty.     He  will  be  granted  a 
new   trial.     He    will   be   tried    somewhere,    within    a   year 
or  two.     He  will   be  sentenced   to    imprisonment    for   life. 
Eventually  he  will  be  pardoned  out.     And  this  in  spite  of 
all  our  public   meetings,  resolutions,  committees,  virtuous 
indignation   and  what    not.     And  why?     Because  the  sum 
of  fourteen  hundred  dollars  is  enough  nowadays  to  enable  a 
man  to  purchase  immunity  from  the  consequences  of  any 
crime.  .   .  .  The    courts    are    now   completely  in    the    con- 
trol of  corrupt  and  mercenary  shysters  —  the  jackals  of  the 
legal  profession  —  who  feast   and  fatten   on  human  blood 
spilled  by  the  hands  of  other  men.     All  this  mitst  be  reme- 
died.    There  can  be  found  a  remedy,  and  it  must  be  found 

The  Supreme  Court  held  that  the  publication  was  a 
contempt,  and  that  a  disclaimer  of  any  such  intent  was 
no  defence.  Charles  L.  Wilson,  the  proprietor  of  the 
Journal,  was  fined  $100  and  costs,  although  he  was  not 
aware  that  the  editorial  had  been  written  until  after  it 
was  published,  his  ignorance  of  the  fact  being  accepted 
in  mitigation,  and  Andrew  Shuman,  the  managing  ed- 
itor, was  fined  $200  and  costs.  The  Court,  which 
stood  four  to  three  for  conviction,  said  in  passing  sen- 
tence, "Our  object  will  be  accomplished  if  we  show 
to  the  press  that  it  cannot  be  permitted  to  attempt  to 
influence  the  decision  of  cases  pending  in  the  courts."  1 

In  the  case  of  the  Chicago  Evening  Journal  the  pub- 
lication was  held  to  be   a  contempt  independently  of 

1  The  People  v,  Wilson  et  al.,  64  111.  195.  See  also  William  C.  Sturoc's  case 
(Newport  Argus  and  Spectator,  Sept.  6,  1867),  48  N.  H.  428. 


LIBELS   AS   CONTEMPTS   OF   COURT.  lQg 

statute.  In  a  somewhat  similar  case  in  Arkansas  1  the 
publication  was  declared  a  contempt  in  spite  of  statute. 
The  Legislature  of  the  State  expressly  enacted  that  the 
power  of  a  court  to  punish  for  contempts  should  be 
"confined"  to  contemptuous  behavior  "  in  its  immedi- 
ate view  and  presence."  The  Supreme  Court,  however, 
maintained  that  it  had  the  power,  which  could  not  be 
taken  from  it  except  by  abolishing  the  court  itself,  to 
punish  a  newspaper  publisher  for  charging  it,  during  a 
session,  with  bribery.  And  in  a  comparatively  recent 
case  in  West  Virginia  the  Supreme  Court  of  Appeals 
said  :  "  In  this  country,  where  the  courts  are,  in  the  di- 
visions of  power  by  the  constitutions  of  the  several 
States,  constituted  a  separate  and  distinct  department 
of  government,  clothed  with  jurisdiction  and  not  ex- 
pressly limited  by  the  constitution  in  their  powers  to 
punish  for  contempt,  the  inherent  power  that  is  thus 
necessarily  granted  them  cannot  be  taken  away  by  the 
legislative  department  of  the  government."  2  This  case 
in  West  Virginia  grew  out  of  an  editorial  published  in 
the  Wheeling  Intelligencer,  June  18,  1884.  The  first 
paragraph  of  the  editorial  was  as  follows  :  — 

The  State  campaign  seems  to  be  shaping  itself.  It  leaks 
out  that  the  Supreme  Court  of  Appeals  is  to  be  brought  to 
the  rescue  in  a  decision  affirming  the  constitutionality  of  the 
Exemption  Act,  and  declaring  the  supplemental  assessment 
order  to  be  lawful  and  right.  This  is,  in  effect,  what  was 
promised  by  the  three  Supreme  Court  judges  to  the  Demo 
cratic  caucus  before  the  order  was  issued. 

This  editorial  was  declared  by  the  learned  judges  to 
be  an  attempt  to  affect  the  decision  of  the  Court  in  a 

1  State  v.  Morrill  (Des  Arc  Citizen,  March  24,  1855),  16  Ark.  404. 

2  State  v.  Frew  and  Hart,  24  W.  Va.  416,  457.     See  also  the  State  v.  Cheadle 
(Frankfort  Banner),  no  Ind.  301. 

(i 


IIO  NEWSPAPER   LIBEL. 

case  then  pending,  and  in  voluminous  opinions  by  three 
of  the  four  judges  constituting  the  court,  one  of  the 
publishers  and  the  chief  editor  of  the  Intelligencer  were 
pronounced  guilty  of  contempt.  John  Frew  was  fined 
S.25  and  costs,  although  he  knew  nothing  of  the  con- 
temptuous editorial  until  after  it  was  in  print-  Charles 
Burdett  Hart,  the  writer  of  the  libel,  was  fined  $300 
and  costs.  Green,  J.,  read  a  dissenting  opinion  in  so 
far  as  the  sentences  were  concerned.  "  In  my  judg- 
ment," said  he,  "this  defendant,  Hart,  ought  to  be 
imprisoned  as  well  as  fined."1 

A  more  liberal  view  was  taken  by  the  High  Court  of 
Errors  and  Appeals  in  Mississippi  in  an  earlier  case. 
Walter  Hickey,  editor  of  the  Vicksburg  Sentinel,  pub- 
lished, June  10,  1844,  during  a  term  of  the  Circuit 
Court,  the  following  article  :  — 

Judge  Coalter  and  the  Murderer  of  Hagan.  — 
We  have  information,  from  the  most  undoubted  authority, 
that  immediately  after  the  grand  jury  of  Warren  county 
brought  in  a  true  bill  against  Adams,  for  murder  in  the  first 
degree,  for  killing  Dr.  James  Hagan,  District  Attorney 
Walker,  obedient  to  his  sworn  and  solemn  duty,  twice 
demanded  of  Judge  Coalter  that  Adams  should  be  com- 
mitted to  prison,  both  of  which  demands  the  judge  disre- 
garded, and  Adams  is  still  at  large.  Having  disregarded 
his  oath  of  office,  and  failed  to  execute  the  laws,  Judge 
Coalter  deserves  to  be  hurled  from  a  seat  he  desecrates, 
and  brought  as  a  criminal  abettor  of  murder  to  the  bar  to 
answer  for  his  crimes.  .  .  . 

The  editor  admitted  the  publication,  and  was  ordered 
to  pay  a  fine  of  $500  and  costs,  and  to  be  imprisoned 
in  jail  for  five  months.  On  the  following  day  he  was 
discharged  by  the   sheriff  on  a  pardon   from  the  gov- 

1  24  W.  Va.  489.     See  also  the  Afnerican  Journalist,  July,  1884. 


LIBELS   AS   CONTEMPTS   OF  COURT.  „, 

ernor.  The  pardon  was  granted  on  the  ground  that 
the  alleged  contempt  was  not  committed  within  the 
presence  of  the  Court,  and  that  the  sentence  was 
excessive  of  the  authority  granted  to  the  Court  by  the 
constitution  and  laws.  The  Circuit  Court  the  next  day 
ordered  that,  as  "the  said  Walter  Hickey  has  by  some 
means  escaped  from  said  jail,"  the  sheriff  should  again 
confine  him  under  the  order  for  contempt.  Mr.  Hickey 
was  brought  up  on  the  following  day  before  the  High 
Court  of  Errors  and  Appeals  on  a  writ  of  habeas 
corpus.  This  tribunal  held  that  under  the  statute  of 
the  State,  which  provided  that  no  act  was  contempt 
unless  committed  in  the  presence  of  the  Court,  Mr. 
Hickey's  publication  was  not  a  contempt,  but  only  a 
libel  on  the  judge  independently  of  his  judicial  char- 
acter.    The  pardon  was  accordingly  valid.1 

The  conviction  of  one  Abrahams  in  the  Circuit  Court 
of  Iowa  in  November,  1857,  and  the  subsequent  pro- 
ceedings in  the  case,  called  forth  the  following  article 
in  the  Burlington  Daily  Hawkeye :  — 

In  the  malicious  prosecution  pending  against  J.  F.  Abra- 
hams, under  the  rulings  of  the  Court,  he  was  convicted  of 
leasing  his  house  for  improper  purposes,  and  fined  by  Judge 
Clao-o-ett,  $100.  Upon  his  appearing  and  offering  to  appeal 
to  the  Supreme  Court,  Judge  Claggett  fixed  the  bail  at  fifty 
thousand  dollars.  What  do  our  readers  think  of  the  fair- 
ness and  impartiality  of  a  judge  who  is  guilty  of  this  extor- 
tionate demand,  in  direct  violation  of  the  eighth  amend- 
ment to  the  Constitution  —  "excessive  bail  shall  not  be 
required  "  ?  .  .  . 

A  writ  was  served  upon  C.  Dunham,  editor  and  pro- 
prietor of   the  Hawkeye,  ordering  him  to   show  cause 

1  Ex  parte  Walter  Hickey,  4  Smedes  &  Marshall,  751. 


II2  NEWSPAPER   LIBEL. 

why  he  should  not  be  punished  for  a  contempt.  Before 
the  determination  of  the  proceedings  Mr.  Dunham 
published  the  following  (November  10,  1857):  — 

The  First  Attempt  in  Iowa  to  Muzzle  the  Press. 
—  Waiting  no  longer  for  the  decision  of  the  Court,  we  shall 
to-morrow  publish  a  correct,  and  so  far  as  we  can  make  it, 
full  and  complete  report  of  the  arrest  and  trial  of  C.  Dun- 
ham, in  violation  of  his  constitutional  rights,  and  his  privi- 
leges of  trial  by  jury,  for  daring  to  speak  of  the  doings  of 
Judge  Claggett  and  the  Circuit  Court.  We  shall  give  a  full 
account  of  this  high-handed  assault  upon  the  liberty  of  the 
press  by  a  vindictive  and  august  judge.  .  .  . 

These  articles,  and  otheis  published  November  11, 
again  caused  the  arrest  of  Mr.  Dunham  upon  an  infor- 
mation filed  by  Judge  Claggett,  and  this  action  of  his 
Honor  called  forth  the  following  editorial,  November 

More  Contempt.  — .  .  .  Judge  Claggett  constituted  him- 
self judge  and  jury,  and  would  have  added  the  character 
of  executioner,  if  he  had  dared.  His  attempted  censor- 
ship of  the  press,  as  it  appeared  in  our  forcible  arrest  and 
trial,  never  had  a  color  of  law,  and  was  not  a  cause  pending 
in  any  fair  sense  of  the  word.  It  was  an  outrage  —  it  was 
a  mockery  —  it  was  anything,  rather  than  a  cause  pending 
in  any  legal  and  proper  sense.  ...  It  is  Judge  Claggett's 
second  effort  to  deprive  us  of  our  rights,  and  prevent  his 
arbitrary  and  tyrannical  acts  from  becoming  known  through 
the  medium  of  the  press. 

For  this  publication  the  editor  was  charged  a  third 
time  with  contempt,  this  time  upon  the  information  of 
the  prosecuting  attorney  of  Des  Moines  county.  He 
was  tried  on  the  three  charges,  discharged  under  the 
first,  and  found  guilty  under  the  second   and  third,  and 


LIBELS   AS   CONTEMPTS   OF   COURT. 


"3 


fined  $50.  He  carried  the  case  before  the  Supreme 
Court,  where  the  judgment  of  conviction  in  the  Circuit 
Court  was  reversed.  The  Supreme  Court  held  that  a 
power  to  punish  for  contempt  in  the  case  of  publica- 
tions made  out  of  court  is  not  necessary,  either  for  the 
protection  of  the  Court  or  the  public.  The  Court 
said  that  it  did  not  sanction  the  editor's  course,  but 
added  :  "  If  his  attack  were  libellous,  then  it  seems  to  us 
that  he  and  the  judge  assailed  should  be  placed  on  the 
same  grounds,  and  '  their  common  arbiter  should  be 
a  jury  of  the  country.'  No  Court  can  or  should  hope 
that  its  opinions  and  actions  can  escape  discussion  or 
criticism."  1 

"  Long  "  John  Wentworth  was  editor  of  the  Chicago 
Morning  Democrat  from  1836  to  186 1.  May  7,  1840, 
while  he  was  serving  as  a  member  of  a  petit  jury  in  the 
trial  of  a  capital  case,  he  published  in  the  Democrat  the 
following  paragraph  :  — 

Another  Whig  Victory.  —  Why  has  the  editor  of  this 
paper  been  a  Harrison'  man  for  the  last  three  days  ?  Be- 
cause he  has  been  under  keepers,  and  allowed  to  express  no 
sentiments,  and  answer  no  questions. 

For  furnishing  this  and  other  articles  for  publication, 
while  under  the  charge  of  officers  of  the  court,  Mr.  Went- 
worth was  criticised  by  the  Chicago  Daily  American. 
The  Circuit  Court  deemed  the  comments  of  the  Amer- 
ican to  be  a  contempt,  and  fined  William  Stuart,  the 
editor,  $100  and  costs.  The  case  was  carried  before  the 
Supreme  Court  on  a  writ  of  error,  and  the  judgment 
was  reversed.  "An  honest,  independent,  and  intelli- 
gent court,"  said  the  judge  who  rendered  the  opinion, 

1  The  State  v.  Dunham,  6  Clarke,  245. 


114  NEWSPAPER   LIBEL. 

"  will  win  its  way  to  public  confidence  in  spite  of  news- 
paper paragraphs,  however  pointed  may  be  their  wit  or 
satire,  and  its  dignity  will  suffer  less  by  passing  them 
by  unnoticed  than  by  arraigning  the  perpetrators, 
trying  them  in  a  summary  way,  and  punishing  them  by 
the  judgment  of  the  offended  party."1 

As  already  stated,  courts  of  inferior  jurisdiction  do 
not  generally  possess  the  power  to  punish  for  "con- 
structive "  contempts,  or  contempts  not  committed  in 
their  immediate  presence.  A  Connecticut  coroner, 
however,  ruled  that  Frank  H.  Afford,  editor  of  the 
Middletown  Daily  Herald,  was  guilty  of  contempt  in 
publishing  the  following  in  the  Herald,  March  25, 
1887:  — 

A  Pretty  How  D'  ye  Do.  —  Chief  Justice  Lovell  Hall 
is  holding  court  and  investigating  the  cause  of  the  death  of 
Mellick  Connors.  In  this  court  Hall  acts  as  attorney, 
judge,  clerk,  messenger,  officers,  and  in  fact  manages  to 
scoop  in  all  of  the  fees.  A  witness,  who  is  in  a  neighboring 
town,  was  wanted  by  Judge  Hall.  A  warrant  for  his  arrest 
was  issued  and  given  to  an  officer,  but  the  court  had  no 
money,  the  judge  penniless,  and  in  fact  no  one  connected 
with  the  court  had  sufficient  money  to  pay  the  officer's 
expenses.  So  the  evidence  of  this  important  witness  will 
not  be  heard  before  this  high  tribunal. 

Mr.  Afford  was  sentenced  by  Coroner  Hall  to  pay  a 
fine  of  one  dollar  and  to  be  imprisoned  one  day  in  jail. 
A  motion  for  a  writ  of  error  was  denied.2  Every  attor- 
ney in  the  county,  as  well  as  a  large  number  of  citizens, 
signed  a  petition  for  the  removal  of  the  coroner  from 
office  ;  but  the  judges  who  appointed   him   decided  to 

1  The  People  v.  Stuart,  3  Scammon,  405. 

2  See  the  Middletown  Herald  and  Middletown  Constitution,  March  29,  1887. 


LIBELS   AS   CONTEMPTS   OF  COURT. 


J'S 


allow  him  to  serve  out  his  term,  with  the  assurance 
that  he  should  not  be  reappointed.  A  few  months 
earlier  Mr.  Alford  had  been  declared  to  be  in  con- 
tempt by  an  associate  judge  of  the  City  Court  of  Mid- 
dletown,  who  took  exception  to  the  expression  "  Lime- 
Kiln  Club,"  as  applied  to  his  court.  The  editor  was 
allowed  to  purge  himself  of  contempt  by  filing  a  written 
apology  and  paying  costs.1 

The  question  has  been  raised,  whether  a  grand  jury 
can  of  their  own  motion  "  take  official  action  against 
the  proprietors  of  public  journals  for  the  publication  of 
articles  which,  in  their  judgment,  reflect  unwarrantably 
upon  themselves  or  upon  the  Court."  This  question 
was  propounded  to  the  Court  of  Quarter  Sessions  in 
Philadelphia  by  the  grand  jury,  and  answered  by  Judge 
Ludlow  by  a  reference  to  the  statute  of  1836,  cited  in 
part  below.2  Judge  Ludlow  stated  that  the  party 
aggrieved,  whether  a  member  of  the  grand  jury  or  other 
court  officer,  had  under  the  statute  ample  redress  by 
civil  or  criminal  proceedings  against  the  publisher  of 
the  article,  exactly  as  any  other  person  who  is  libelled. 
"  I  would  rather,"  said  he,  "  suffer  unjust  and  even  im- 
prudent criticism  than  violate  a  great  principle,  for  I 
know  that  sooner  or  later  an  act  of  injustice  will  be 
rectified  by  an  enlightened  public  opinion,  while  a 
violation  of  a  principle  not  only  inflicts  a  mortal  wound 
upon  the  cause  of  the  liberty  of  the  press  and  of  the 
citizen,  but  that  wound  would  be  inflicted  by  the  arm 
sworn  to  protect  and  defend  both."3 

An    editorial,    supposed   to   have    been   written   by 

1  See  the  Journalist,  Aug.  7,  1886. 

2  See  p.  126. 

3  Grand  Jury  <'.  the  Public  Press,  4  Brewster  (1869),  313. 


n6  NEWSPAPER   LIBEL. 

Horace  Greeley,  was  published  in  the  New  York 
Tribune,  April  14,  1864,  pending  the  trial  of  one  Nixon 
in  the  Court  of  Oyer  and  Terminer.  The  editorial  was 
headed,  "  A  Judicial  Outrage,"  and  was  deemed  an 
unjust  reflection  upon  the  conduct  of  the  judge  presid- 
ing at  the  trial.  Mr.  Greeley  was  ordered  to  show 
cause  why  he  should  not  answer  for  a  contempt  of 
court,  and  was  ordered  to  answer  certain  interrogatories 
regarding  the  authorship  of  the  editorial  and  the 
responsibility  for  its  publication.  The  Court  disclaimed 
any  complaint  as  to  editorial  comments,  relying  upon 
the  charge  that  the  article  Was  a  grossly  inaccurate 
report  of  the  proceedings  of  the  court.  Mr.  Greeley 
filed  the  following  statement :  — 

Horace  Greeley,  in  the  above-entitled  proceedings  re- 
ferred to,  protesting  against  the  jurisdiction  of  this  court 
over  his  person,  and  over  the  proceedings  now  being  taken, 
and  insisting  that  they  are  irregular  and  without  warrant  of 
law,  and  further  insisting  that  he  ought  not  to  be  asked, 
and  cannot  legally  be  compelled,  to  answer  questions  upon 
a  charge  which  is  in  its  nature  criminal,  and  for  which  he 
may  be  exposed  to  indictment,  both  as  a  misdemeanor  for 
a  contempt  as  well  as  for  a  libel,  and  further  insisting  that 
the  said  article,  in  the  order  to  show  cause  in  these  pro- 
ceedings referred  to,  is  not  a  report  of  the  proceedings  of  a 
court,  but,  on  the  other  hand,  is  simply  an  editorial  criti- 
cism, based  upon  a  report  of  such  proceedings  contained  in 
a  newspaper  called  the  Evening  Express,  published  two 
days  before  said  editorial  article  was  published,  to  wit,  on 
the  1 2th  day  of  April  instant :  — 

For  answer  to  tie  interrogatories  filed  and  served  on  him, 
says  that  he  is  now,  and  ever  since  its  foundation  has  been, 
the  principal  editor  of  the  newspaper  called  the  Tribune, 
and  is  one  of  its  proprietors,  by  being  a  stockholder  of  the 


LIBELS    AS    CONTEMPTS    OF   COURT. 


117 


corporation  that  publishes  the  same  ;  that  as  such  editor 
and  proprietor  he  is  subject  to  all  the  responsibilities  that 
justly  pertain  to  that  relation.  Believing  that  this  avowal  is 
a  substantial  answer  to  all  the  interrogatories  propounded  to 
him,  he  most  respectfully  declines  to  answer  any  questions 
that  may  expose  any  of  his  associates  in  the  editorship  and 
publication  of  said  newspaper  to  the  discipline  of  this 
tribunal,  preferring  to  abide  the  consequences,  be  they 
what  they  may. 

"  The  Court,  being  satisfied  that  no  disrespect  was 
intended,  discharged  Mr.  Greeley."1 

The  disclaimer  of  an  intention  to  show  disrespect  for 
the  Court  was  held  in  the  case  of  the  People  v.  Charles 
L.  Wilson,  cited  above,  to  be  no  defence  in  proceedings 
for  contempt.  In  Mr.  Greeley's  case,  however,  and  in 
the  case  of  B.  F.  Moore  et  a/.,  in  North  Carolina,2  the 
intent  was  deemed  material.  Mr.  Moore  and  one  hun- 
dred and  seven  others,  members  of  the  bar,  published 
in  the  Raleigh  Daily  Sentinel,  April  19,  1869,  under  their 
own  names,  "  a  solemn  protest  of  the  bar  of  North  Car- 
olina against  judicial  interference  in  political  affairs," 
in  which  they  said  :  — 

Never  before  have  we  seen  the  judges  of  the  Supreme 
Court,  singly  or  en  masse,  moved  from  that  becoming  pro- 
priety so  indispensable  to  secure  the  respect  of  the  people, 
and,  throwing  aside  the  ermine,  rush  into  the  mad  contest  of 
politics  under  the  excitement  of  drums  and  flags. 

This  protest  was  held  by  the  Court  to  be  libellous, 
but  the  respondents  were  "excused,"  not  "acquitted," 
upon  disavowing  under  oath  any  intention  of  commit- 
ting a  contempt  of  court,  or  of  impairing  the  respect 

1  Townshend  on  Slander  and  Libel,  p.  407. 

2  In  the  matter  of  B.  F.  Moore  et  al.,  63  N.  C.  397. 

6* 


n8  NEWSPAPER   LIBEL. 

clue  to  its  authority.  The  Court  expressly  distinguished 
between  a  contempt  proceeding  and  an  indictment  for 
libel,  the  actual  intention  of  the  respondent  being  mate- 
rial in  the  former  case,  though  not  in  the  latter. 

In  an  early  case  in  New  York,  disavowal  of  bad 
intent  was  held  to  be  only  a  matter  of  mitigation. 
Samuel  Freer  was  committed  for  contempt  for  publish- 
ing in  the  Ulster  Gazette  in  August,  1803,  certain  unfa- 
vorable comments  on  the  conduct  of  the  case  of  Harry 
Croswell,  who  was  on  trial  for  libelling  President  Jeffer- 
son.1 The  editor  disclaimed  all  wrongful  intent,  and 
was  discharged  on  payment  of  a  fine  of  ten  dollars.2 

Generally  speaking,  a  libel  will  be  construed  as  a 
contempt  of  court  only  when  its  publication  will  tend 
to  obstruct  the  court  in  the  administration  of  the  law. 
This  principle  is  shown  in  the  case  of  the  People  v. 
Wilbur  F.  Storey.3  The  grand  jury  had  returned  four 
indictments  against  Mr.  Storey,  March  13,  1S75,  three 
for  libel  and  one  for  publishing  an  obscene  newspaper. 
Mr.  Storey  subsequently  published  several  articles  in 
the  Chicago  Times,  reflecting  upon  the  action  of  the 
grand  jury,  questioning  its  integrity  as  a  body,  and 
attacking  the  moral  character  of  some  of  its  members. 
For  this  he  was  sentenced  in  contempt  to  imprisonment 
in  the  county  jail,  but  the  Supreme  Court  reversed  the 
judgment  of  the  lower  court,  on  the  ground  that,  the 
indictments  having  been  already  found,  the  articles  had 
no  tendency  to  impede  the  grand  jury  in  the  discharge 
of  its  duties.  "  It  is  not  advisable  under  our  constitu- 
tion," says  Judge  Scholfield  in  rendering  the  opinion  of 

1  See  ante,  p.  20. 

-The  People  v.  Freer,  1  Caines,  485,  518. 

3  79  111.  45.  See  also  the  State  v.  Anderson  (Keokuk  Daily  Gate  City),  40 
Iowa  (1875),  207. 


LIBELS   AS   CONTEMPTS   OF   COURT. 


119 


the  Court,  "  that  a  publication,  however  libellous,  not 
directly  calculated  to  hinder,  obstruct,  or  delay  courts 
in  the  exercise  of  their  proper  functions,  shall  be 
treated  and  punished  summarily  as  a  contempt  of 
court."  The  editor  would,  however,  be  liable  in  such 
case,  civilly  or  criminally,  for  the  libel  upon  the  individ- 
ual jurymen.1 

Similarly,  the  Supreme  Court  of  Indiana  held  that 
newspaper  comments,  however  stringent  or  libellous, 
having  relation  to  proceedings  which  are  past  and 
ended,  are  not  in  contempt  of  the  authority  of  the 
court  to  which  reference  is  made.  In  this  case  a  cir- 
cuit judge  had  fined  the  editor  of  the  Frankfort  Banner 
fifty  dollars  and  costs  for  publishing  an  article  entitled 
"A  Joke  on  a  Judge,"  December  12,  1885,  in  which  the 
judge  was  charged  with  having  lost  his  temper  during 
a  criminal  trial,  which  was  then  at  an  end.  The  judg- 
ment of  the  Circuit  Court  was  reversed.2 

Allen  O.  Myers,  a  Cincinnati  journalist  and  politi- 
cian, was  indicted  in  December,  1887,  for  complicity 
in  certain  election  frauds  in  1885.  The  treatment 
which  he  received  in  Columbus  and  Cincinnati  news- 
papers provoked  him  to  the  point  of  writing  a  long 
letter  to  the  Cincinnati  Enquirer.  In  this  letter  he 
used  some  rather  severe  language  regarding  Judge 
Pugh,  of  the  Court  of  Common  Pleas,  and  the  grand 
jury  by  whom  he  was  indicted  :  — 

Let  us  see  who  first  dragged  politics  into  the  tally-sheet 
cases  and  howled  for  a  Democratic  victim.  Dave  Pugh,  the 
judge  on  the  bench  in  this  case,  is  the  creature  of  C.  D. 
Firestone,  the  Columbus   Buggy   Company  fanatic.     Pugh 

1  See  the  case  of  Martin  v.  Byers,  ante,  p.  50. 

2  The  State  v.  Joseph  B.  Cheadle,  no  Ind.  301. 


120  NEWSPAPER   LIBEL. 

was  chairman  of  the  Republican  Central  Committee  of 
Franklin  county.  As  such,  he  visited  the  Ohio  penitentiary 
in  the  dark  and  unholy  hours  of  night,  with  that  creature, 
Cyrus  \V.  Huling,  the  present  persecutor,  and  like  a  jackal 
prowling  around  the  corpse  of  justice,  Pugh,  the  present 
judge,  was  present  when  the  convicts  were  feasted  and  fixed 
to  perjure  themselves  and  swear  away  the  reputation  and 
liberty  of  innocent  Democrats.  Was  this  politics?  ...  A 
special  grand  jury  was  called  in  the  month  of  December  for 
a  special  partisan  purpose.  That  grand  jury  was  "salted." 
It  was  never  honestly  drawn  from  the  box.  .  .  .  The  honest, 
impartial,  upright  judge  lifted  his  "sweet  boy  face"  to 
heaven  and  refused  to  be  a  party  to  such  a  transaction,  but 
ordered  the  clerk  to  draw  a  Huling-Firestone  Columbus 
Buggy  Company  jury  from  the  box.  .  .  . 

This  letter  was  written  in  Cincinnati,  February  20, 
1888,  but  it  was  published  in  the  Enquirer,  March  3, 
under  the  date  line,  "  Columbus,  March  2,"  and  signed 
"  Pickaway."  For  this  letter  Myers  was  arrested  in 
open  court  in  Columbus,  charged  with  contempt.  Judge 
Pugh  read  an  opinion  in  the  case,  May  3,  the  opinion 
occupying  forty  minutes  in  its  delivery.  The  result  of 
the  case  was  thus  stated  in  the  Enquirer,  in  the  head- 
lines of  its  report,  May  4  :  — 

DEAD  —  The  Freedom  of  the  Press  in  Ohio.  — 
A  lien  O.  Myers  Found  Guilty  of  Contempt  Under  the  Com- 
mon Law  of  England — For  Writing  an  Article  in  Cincin- 
nati about  the  Transaction  of  a  fudge  at  a  Former  Term  of 
Court  —  A  tid  Sentenced  to  Arinely  Days  in  fail  and  a  Fine 
of  Two  Hundred  Dollars. 

Sentence  was  suspended,  and  the  prisoner  paroled, 
pending  a  hearing  on  the  case  in  the  Supreme  Court  on 
a  writ  of  error.     The  case  is  the  first  of  its  kind  ever 


LIBELS   AS   CONTEMPTS   OF  COURT.  I2i 

presented  to  that  court,  and  the  author  ventures  the 
prediction  that  the  judgment  of  the  lower  court  will  be 
overruled.  The  statutes  of  Ohio  grant  authority  to  the 
courts  to  "  punish  summarily  a  person  guilty  of  misbe- 
havior in  the  presence  of  or  so  near  the  court  or  judge 
as  to  obstruct  the  administration  of  justice,"  but  it  is 
not  believed  that  authority  can  be  found  under  the  Ohio 
statutes  for  the  judgment  of  guilty  in  this  case,  or  a 
precedent  for  so  severe  a  sentence. 

As  this  book  is  going  through  the  press,  J.  T.  Hawke 
is  writing  editorial  correspondence  to  his  paper,  the 
Moncton,  N.  B.,  Transcript,  from  Fredericton  jail.  His 
term  is  two  months,  and  his  offence,  contempt.  He  in- 
discreetly stated  in  the  Transcript  that  certain  of  the 
New  Brunswick  judges  were  addicted  to  habits  of  intox- 
ication while  on  the  bench.  The  Minister  of  Justice,  in 
the  Dominion  Parliament,  expressed  approval  of  the 
judgment  of  conviction.1 

Discussing  "The  Press  and  the  Law,"  in  an  address 
before  the  Florida  Bar  Association,  Judge  Emory  Speer 
lately  used  the  following  language  with  regard  to  publi- 
cations designed  to  influence  the  courts  in  the  adminis- 
tration of  justice:  — 

"  I  affirm  with  all  the  solemnity  of  the  profoundest  con- 
viction that  of  late  a  portion  of  the  influential  press  have 
invaded  the  temple  of  justice  itself,  and,  with  the  commend- 
able purpose  to  hasten  punishment  upon  what  seems  great 
municipal  and  public  wrong,  have  aimed  blow  after  blow 
which  tended  to  shatter,  as  with  the  hammer  of  Thor,  the 
foundation,  aye,  the  corner-stone  of  the  administration  of  the 
law,  and  to  destroy  and  nullify  that  wise,  benign,  humane, 
and  Christian  principle,  that  the  presumption  of  innocence 

1  Montreal  Herald,  May  15,  1888. 


122  NEWSPAPER   LIBEL. 

shall  clothe  the  accused  as  with  a  garment  until  destroyed 
by  legal  proof,  produced  on  a  fair  trial,  before  an  unprej- 
udiced court  and  an  impartial  jury.  .  .  .  Every  lawyer  and 
judge  will  know  that  I  allude  to  the  newspaper  attempt  to 
insure  the  conviction  for  bribery  of  the  New  York  aldermen 
and  of  Jacob  Sharp.  .  .  .  The  remedy  for  the  injudicious 
encroachments  of  the  press  cannot  be,  must  not  be,  the  Old 
World  proceeding  for  contempt  against  the  editor  ;  but, 
when  it  is  made  to  appear  that  the  inflamed  temper  of  the 
public  will  render  a  fair  trial  impossible,  the  cause  must  not 
be  tried.  It  must  be  passed  to  the  next  term,  and  the  next 
if  need  be,  until  the  returning  sense  of  justice  in  the  leaders 
and  directors  of  public  opinion  will  permit  that  calm,  delib- 
erate and  impartial  action  so  essential  to  the  administration 
of  justice."  *  .   .  . 

In  an  address  before  the  State  Bar  Association 
of  New  York,  at  Albany,  January  17,  1888,  Daniel 
Dougherty,  of  Philadelphia,  discussed  at  length  the  same 
subject.  "Is  trial  by  newspaper  to  be  substituted  for 
trial  by  jury?  "  he  asked,  and  he  called  upon  the  press 
to  publish,  if  they  like,  as  the  law  expressly  permits, 
"  true,  full,  and  fair  reports,"  but  to  forbear  comment 
until  the  trial  is  over  and  judgment  entered.  He  advo- 
cated the  postponement  of  cases  where  newspaper  pub- 
lications have  tended  to  prejudice  the  public,  but  then, 
if  the  comments  are  renewed,  his  policy  would  be  to 
"  punish  severely  by  fine  and  imprisonment,  and  the 
more  conspicuous  the  offender,  the  more  impressive  the 
example."2 

1  New  York  Sun,  Feb.  12,  1888. 

2  American  Law  Review,  March-April,  1888.  It  is  the  practice  of  English 
courts  to  restrain  by  injunction  publications  which  would  tend  to  affect  the  admin- 
istration of  justice.  (Odgers  on  Libel  and  Slander,  second  English  edition, 
p.  337.)  English  courts  also  have  power  to  grant  injunctions  restraining  the  fur- 
ther publication  of  anything  which  a  jury  has  found  to  be  an  actionable  libel. 
(Odgers,  as  above,  p.  340.) 


LIBELS   AS   CONTEMPTS   OF    COURT. 


I23 


The  refusal  of  a  repoiter  to  disclose   the   sources  of 
information  upon  which  he   has   based  a  report,  when 
ordered  to  do  so  in  a  criminal  court,  has  also  been  held 
in  some  cases  to  be  a  contempt.1     John  Dennis,  Jr.,  a 
reporter  on  the  Rochester  Democrat  and  Chronicle,  was 
subpoenaed  before  the  grand  jury  in  that  city,  and  asked 
who  had  given   him   certain    facts   which   he  had  pub- 
lished, regarding  the  alleged  bribing  of  a  jury  by  certain 
city  officials.     He  declined  to  give  the  desired  informa- 
tion, and  was  committed  to  the  Monroe  county  jail,  Jan- 
uary 29,  1885,  for  contempt,  by  Justice  Rumsey,  of  the 
Supreme  Bench.     "At  the  jail  Mr.  Dennis  held  a  levee 
all  the  afternoon.     Lawyers,  business  men,  physicians, 
clergymen,  and  others,  called  on  him,  and  his  apartment 
was  strewn  with  remembrances  from   personal  friends. 
At  5   p.   M.    a  majority   of  the  journalists   of  the   city 
assembled  at  the  jail,  and  being  granted  the  use  of  the 
sheriff's  parlors,  held  a  meeting,  with  Isaac   D.  Mar- 
shall, managing  editor  of  the  Post-Express,    as  chair- 
man.      Resolutions    approving    Mr.    Dennis'    position 
and  criticising  a  law  that  would  condemn  an  innocent 
man    to   incarceration,    without   bail,    for    refusing    to 
divulge   sources  of   information   while  engaged  in  the 
work   of  exposing  corruption,   while   many   men   here, 
recently   charged    and    indicted    for   high    crimes,  and 
tried  have  never  been   deprived  of  their  liberty,   and 
also  pledging  him  their  hearty  support,  were  adopted."  2 
Mr.  Dennis  was  discharged  from  imprisonment  on   the 
following   day  by   Justice   Macomber,   but   his    Honor 
assigned  no  reason  for  this  action. 

John  T.  Morris,  a  Baltimore  Sun  reporter,  obtained  the 

1  This  is,  of  course,  however,  quite  aside  from  the  subject  of  newspaper  libels. 

2  The  Journalist,  Jan.  31.  1885. 


I24  NEWSPAPER    LIBEL. 

facts  relative  to  the  indictment  of  a  man  charged  with 
crime,  and  they  were  published  in  advance  of  the 
grand  jury's  report.  He  was  summoned  before  the 
grand  jury  and  questioned  regarding  the  sources  of  his 
information,  and,  declining  to  answer,  was  committed  for 
contempt.  After  seventeen  days,  the  term  of  the  grand 
jury  having  expired,  he  was  released  on  a  mandamus.1 

In  a  similar  case  in  Massachusetts,  Judge  Blodgett, 
of  the  Superior  Court,  ruled  that  recalcitrant  witnesses 
could  not  be  compelled  to  divulge  the  sources  of  their 
information.  James  P.  Frost,  city  editor  of  the  Boston 
Globe,  and  Daniel  J.  Saunders,  a  reporter  on  the  same 
paper,  were  subpoenaed  before  the  grand  jury  and  asked 
from  whom  certain  facts  had  been  obtained  which  were 
embodied  in  a  news  article  regarding  a  certain  murder 
case.  The  two  gentlemen  declined  to  disclose  the 
name  of  their  informant,  and  after  a  protracted  hear- 
ing, the  Court  decided  that  they  could  not  be  compelled 
to  do  so.2  This  case  is  distinguished  from  that  of  Mr. 
Dennis  by  the  fact  that  the  grand  jury  in  the  case  of 
Messrs.  Frost  and  Saunders  were  simply  seeking  to 
ascertain  who  had  disclosed  certain  secrets  of  the  dis- 
trict attorney's  office  or  police  department,  and  were 
not  endeavoring  to  obtain  evidence  to  be  used  in  a 
criminal  trial. 

Still  another  class  of  contempts,  of  especial  interest 
to  members  of  the  press,  is  thus  provided  for  by  statute 
in  Alabama  :  —  3 

The  printer  or  proprietor  of  any  newspaper,  hand-bill, 
advertisement  or  libel,  the  publication  of  which  is  punishable 

1  Philadelphia  Press,  Jan.  9,  1887. 

2  See  the  Boston  Globe,  Dec.  5,  1884. 

3  Criminal  Code,  §  3774. 


LIBELS   AS   CONTEMPTS   OF  COURT. 


!25 


under  the  preceding  sections,  who  refuses,  when  summoned, 
to  appear  and  testify  before  either  the  grand  or  petit  jury, 
respecting  the  publication  of  such  newspaper,  hand-bill, 
advertisement  or  libel  (not  having  a  good  excuse,  to  be 
determined  by  the  Court),  is  guilty  of  a  contempt,  and  also  of 
a  misdemeanor ;  and  on  conviction  for  such  misdemeanor 
must  be  fined  not  less  than  twenty  nor  more  than  three  hun- 
dred dollars,  and  may  also  be  imprisoned  in  the  county  jail, 
or  sentenced  to  hard  labor  for  the  county,  for  not  more  than 
six  months. 

Under  a  similar  statute  in  Georgia,1  A.  W.  Burnett, 
publisher  of  the  Atlanta  Defiance,  was  sentenced  to  pay 
a  fine  of  fifty  dollars,  and  to  be  imprisor.ed  ten  days  in 
the  common  jail.  His  offence  was  a  refusal  when  sum- 
moned as  a  witness  to  give  the  name  of  the  author  of 
a  paragraph  in  which  the  prosecuting  witness  was  called 
an  "  old  skunk,"  or  indeed  to  testify  at  all.  His 
refusal  to  testify  was  based  upon  the  fact  that  he  had 
been  indicted  for  the  same  offence,  and  that  his  testi- 
mony would  tend  to  criminate  himself.  This,  the 
Court  ruled,  would  not  excuse  him  frcm  testifying, 
though  he  would  be  protected  in  refusing  to  answer  any 
specific  question  having  such  tendency.2 

In  a  case  in  Tennessee  the  Supreme  Court  held  that 
a  judgment  of  conviction  for  contempt  is  not  subject 
to  revision  by  any  other  court,  by  appeal,  writ  of  error, 
or  otherwise  ;  but  there  are  manv  contrary  decisions  in 
other  States.  In  this  case  Messrs.  Galloway  and  Rhea 
of  the  Memphis  Avala?iche  had  been  sentenced  to  fine 
and  imprisonment  for  publishing  an  editorial  denoun- 
cing one  of  the  judges  as  guilty  of  official  corruption  in 

1  Code,  §  4522. 

2  The  State  v.  Pledger,  3  Southeastern  Reporter  (1887),  320.  The  Court 
held  that  the  words  above  quoted  were  libellous. 


126  NEWSPAPER   LIBEL. 

admitting  to  bail  a  certain  prisoner,  who  had  been 
indicted  for  a  felony.  The  respondents  had  been 
refused  a  discharge  on  a  writ  of  habeas  corpus  The 
Supreme  Court  held  that  the  writ  of  habeas  corpus 
offers  the  only  redress  to  a  person  convicted  for  con- 
tempt, but  that  where  a  judge  grants  or  refuses  to  grant 
a  discharge  on  a  writ  of  habeas  corpus  there  is  no 
appeal  to  any  higher  court.  It  was  further  held  that 
where  a  respondent  has  been  committed  for  contempt, 
and  the  case  is  reviewed  on  a  writ  of  habeas  corpus, 
the  judge  hearing  the  habeas  cannot  examine  the 
evidence  upon  which  the  prisoner  was  convicted  to  see 
whether  the  evidence  sustains  the  judgment  of  com- 
mitment, but  can  only  determine  whether  the  judgment 
is  proper  in  form,  and  whether  the  Court  committing  the 
prisoner  had  jurisdiction  of  the  case.1  In  some  States 
(New  Jersey,  for  instance)  the  courts  'of  last  resort  are 
given  statutory  power  to  review  contempt  proceedings 
had  in  courts  of  limited  jurisdiction  both  on  the  law 
and  the  facts. 

Some  of  the  States  have  by  statute  restricted  the 
power  of  the  courts  to  punish  for  contempts.  In  Penn- 
sylvania, by  the  statute  of  June  16,  1836,2  it  is  provided 
that  — 

No  publication,  out  of  court,  respecting  the  conduct  of  the 
judges,  officers  of  the  court,  jurors,  witnesses,  parties,  or  any 
of  them,  of,  in  or  concerning  any  cause  depending  in  such 
court,  shall  be  construed  into  a  contempt  of  the  said  court, 
so  as  to  render  the  author,  printer,  publisher,  or  either  of 
them,  liable  to  attachment  and  summary  punishment  for  the 
same. 

1  The  State  v.  M.  C.  Galloway  et  al.,  5  Coldwell  (1868),  326. 

2  It  will  be  observed  that  the  case  of  Steinman  and  Hensel,  cited  above,  was 
a  disbarment  proceeding,  and  not  a  proceeding  for  contempt. 


LIBELS   AS   CONTEMPTS   OF  COURT.  12-j 

In  a  number  of  other  States  the  power  of  the  courts 
to  punish  contempts  by  attachment  and  summary 
process  has  been  restricted  by  statute  in  general  terms 
to  misbehavior  in  the  presence  of  the  Court  and  diso- 
bedience of  its  process.  These  statutes,  however,  are 
subject  to  such  construction  as  the  Court  itself  may  see 
fit  to  place  upon  them,  and  in  one  case  it  was  even 
held  that  a  publication  tending  to  scandalize  the  Court 
was  an  act  done  in  the  presence  of  the  Court,  although 
the  publication  took  place  in  another  city.1  Where  the 
power  to  punish  for  contempts  is  thus  limited  by  statute, 
the  proper  remedy  of  the  judge  or  other  party  aggrieved 
is  a  civil  action  to  recover  damages  or  a  criminal  prose- 
cution for  libel  ;  and  in  States  where  publications  out 
of  court  may  be  punished  as  contempts  by  summary 
process,  this  punishment  is  in  every  case  a  penalty  in 
addition  to  the  usual  civil  action  and  indictment,  and 
not  a  substitute  for  them. 

The  Federal  courts  have  held  that  the  constitu- 
tional guaranty  of  the  right  of  trial  by  jury  in  criminal 
prosecutions  does  not  extend  to  proceedings  for  con- 
tempt. William  Duane  published  in  the  Philadelphia 
General  Advertiser  (commonly  called  the  Aurora),  May 
20,  1801,  an  article  headed  "The  Age  of  Revolutions," 
in  which  the  verdict  in  a  certain  case  is  called  "  most 
infamous,"  and  severe  reflections  are  cast  upon  the 
plaintiff,  and  upon  the  judges  who  presided  at  the  trial. 
He  was  refused  a  jury  trial,  and  was  sentenced  to  impris- 
onment for  thirty  days.2  Similar  decisions  have  been 
made  in  New  York,  New  Jersey,  Minnesota,  Iowa,  New 

1  The  People  v.  Charles  L.  Wilson  et  al.,  cited  above. 

2  Levi  Hollingsworth  v.  William  Duane,  John  B.  Wallace's  U.  S.  Circuit 
Court  Reports,  77. 


i28  NEWSPAPER   LIBEL. 

Hampshire,  and  Arkansas.  The  power  of  courts  to 
punish  for  contempt  without  the  intervention  of  a  jury 
is  much  restricted  in  Kentucky,  Virginia,  and  West  Vir- 
ginia, by  statute,  but  in  most  of  the  other  States  no 
provision  is  made  for  the  submission  of  questions  of 
contempt  to  juries.     The  offence  is  not  bailable. 

On  account  of  its  arbitrary  character,  the  power  of 
the  courts  in  matters  of  contempt  has  always  been 
looked  upon  with  great  jealousy  in  the  United  States. 
In  some  cases  there  is  a  limited  power  of  revision  by 
a  higher  court,  where  the  power  to  commit  for  contempt 
has  been  abused  ;  but  the  only  other  remedy  is  by  im- 
peachment of  the  judges  by  the  Legislature.  There 
is  a  growing  sentiment  in  favor  of  such  legislation  as 
that  cited  above  from  the  statutes  of  Pennsylvania,  but 
its  growth  is  too  slow  in  many  of  the  States  to  keep 
pace  with  the  requirements  of  modern  journalism 
The  newspaper  has  become  such  an  important  factor 
in  business  and  society,  that  its  interests  are  identified 
with  those  of  the  public  ;  and  the  interests  of  neither 
the  press  nor  the  people  at  large  are  subserved  by  the 
summary  punishment  of  an  editor  or  newspaper  writer 
for  the  publication  of  facts  or  opinions  which  happen 
to  be  distasteful  to  a  judge.  This  power  of  the  judges 
to  inflict  summary  punishment  for  contempts  is  a  relic 
of  the  early  judicial  system  when  the  king  himself  sat 
in  judgment.  At  that  time  an  act  of  contempt  of  court 
was  an  offence  against  the  person  of  the  sovereign,  and  the 
sovereign's  power  to  punish  the  offender  was  absolute. 
It  is  necessary  to  the  existence  of  the  courts  that  they 
possess  power  to  compel  obedience  of  their  process 
and  enforce  order  in  their  actual  presence,  but  it  is  not 
required  for  the  maintenance  of  their  authority  that  they 


LIBELS    AS   CONTEMPTS   OF   COURT.  I2Q 

possess  the  power  summarily  to  fine  and  imprison  a 
newspaper  writer  for  publications  out  of  court,  —  to  con- 
demn, without  indictment  by  the  grand  jury  or  trial  by 
a  petit  jury,  and  without  the  right  of  bail,  at  the  will 
of  one  man,  and  he  the  injured  party.  "  This  power," 
said  William  E.  Potter,  arguing  on  behalf  of  a  client 
who  had  been  adjudged  guilty  of  contempt,1  "violates 
the  fundamental  principle  that  no  judge  shall  try  a 
cause  in  which  he  has  a  personal  interest.  It  makes 
the  judge,  who  is  the  injured,  and  therefore  the 
offended  party,  at  once  the  person  who  makes  the 
accusation,  defines  the  crime,  furnishes  the  evidence, 
decides  as  to  its  sufficiency,  convicts  and  fixes  the  term 
and  degree  of  punishment,  which  is  without  limit, 
except  in  his  own  discretion,  and  may  extend  to  entire 
confiscation  of  property  and  imprisonment  for  life." 

1  In  re  John  Cheeseman,  49  N.  J.  Law  Reports,  115.  Mr  Checseman  had 
been  tried  for  assault  and  battery,  but  the  jury  disagreed.  He  then  published  in 
his  paper,  the  New  Jersey  Patriot,  of  Bridgeton,  N.  J.,  Jan.  30,  1885,  a  para- 
graph clipped  from  an  exchange,  which  tended  to  cast  discredit  on  the  members 
of  the  grand  jury  which  had  indicted  him,  upon  the  sheriff,  and  upon  the  judge 
who  presided  at  his  trial  and  who  would  preside  at  his  next  trial.  The  Court  of 
Oyer  and  Terminer  fined  him  $100  for  contempt,  and  the  judgment  was  affirmed 
by  the  Supreme  Court. 


130  NEWSPAPER   LIBEL. 


CHAPTER   V. 


PUBLICATION. 


Unless  a  defamatory  writing  is  published,  it  is  not 
actionable,  for  it  causes  no  injury.  If  it  is  published, 
all  who  in  any  wise  participate  in  the  publication  are 
both  civilly  and  criminally  liable.  This  liability  ex- 
tends to  the  writer  of  the  libel,  the  proprietor,  editor, 
and  printer  of  the  newspaper,  and  to  the  news  agent 
who  aids  in  circulating  copies  of  the  paper.1  The 
writer  is  liable  as  publisher  if  he  actually  or  construc- 
tively requests  or  procures  another  to  publish  the  mat- 
ter, and  this  responsibility  is  shared  by  one  who  makes 
orally  a  defamatory  statement  to  a  reporter  with  a  view 
to  its  publication.  It  is  shared  also  by  all  such  organ- 
izations as  the  Associated  Press  and  their  agents,  if 
they  are  the  means  of  disseminating  false  and  defama- 
tory matter.  "  He  who  prints  and  publishes  what  was 
given  to  him  in  manuscript  has  to  answer  for  by  far  the 
greatest  part  of  the  mischief  that  the  statement  has 
occasioned." 2  But  this  responsibility  is  moral  rather 
than  legal,  for  before  the  law  each  publisher,  including 
in  the  term  writer,  printer,  and  dealer,  is  liable  for  all 
the  ensuing  damage. 

The  proprietor  of  a  newspaper  may  be  sued  without 

1  See  a?itc,  pp.  52-54. 

2  Folkard's  Starkie  on  Slander  and  Libel,  p.  385. 


PUBLICATION.  131 

joining  the  writer  of  the  libellous  article  as  a  defendant,1 
and  his  responsibility  is  not  diminished  by  the  fact  that 
the  libel  was  accompanied  by  the  name  of  the  author. 
In  the  Troy  Northern  Budget,  November  15,  1808,  was 
published  the  following  :  — 

I  now,  sir,  publish  you  to  the  world  as  a  man  destitute  of 
honor,  destitute  of  courage,  and  destitute  of  every  moral 
principle  and  feeling  which  renders  a  man  valuable  in  so- 
ciety. 

G.  D.  Young. 
Troy,  15th  November,  1808. 

The  Supreme  Court  held  that  an  action  could  be 
maintained  against  Lyon,  the  editor  of  the  Budget, 
although  the  libel  was  published  under  the  signature  of 
the  author,  and  a  verdict  for  $150  was  sustained.2 

An  action  can  be  maintained  against  the  proprietor 
of  a  newspaper  even  if  the  libel  was  published  as  a 
paid  advertisement.3  In  the  Sheffield,  Eng.,  TJat/j  Tel- 
egraph wzs  published  an  advertisement  headed,  "The 
Press  Trampling  on  the  Rights  of  Labour/'  in  which 
the  publisher  of  the  Sheffield  Times  and  Daily  News 

1  Ludwig  et  at.  v.  Cramer  et  at.  (Milwaukee  Evening  Wisconsin') ,  53  Wis. 
(iS8i),i93. 

2  Dole  v.  Lyon,  10  Johnson  (N.  Y.) ,  447.  The  following  provisions  are  made 
by  statute  in  Texas  for  cases  of  criminal  libel:  "  The  editor,  publisher,  or  propri- 
etor of  a  public  newspaper  may  avoid  the  responsibility  of  making  or  publishing 
a  libel  by  giving  the  true  author  of  the  same,  provided  such  author  be  a  resident 
of  this  State  and  a  person  of  good  character,  except  in  cases  where  it  is  shown  that 
such  editor,  publisher,  or  proprietor  caused  the  libel  to  be  published  with  mali- 
cious design." — (Penal  Code,  art.  626.)  "  No  person  shall  be  convicted  of  libel 
merely  on  evidence  that  he  has  made  a  manuscript  copy  of  a  libel  or  has  performed 
the  manual  labor  of  printing  it,  unless  it  be  shown  positively  that  such  person  was 
actuated  by  a  malicious  design  against  the  person  defamed.  But  the  person  for 
whose  account  or  by  whose  order  it  was  printed  shall  be  presumed  to  have  known 
the  intent  of  the  publication,  and  shall  be  liable  for  the  offence." —  (Penal  Code, 
art.  627.) 

3  Perret  v.  the  New  Orleans  Times  Newspaper,  ante,  p.  24. 


132  NEWSPAPER   LIBEL. 

was  called  "  one  of  those  unscrupulous  employers  who 
think  that  they  have  a  right  to  dictate  to  those  in  their 
employ  any  terms  their  caprice  or  selfishness  may  sug- 
gest," and  in  which  reference  was  made  to  the  "  detesta- 
tion "  in  which  he  was  held  by  those  who  knew  him,  and 
to  his  "highly  disreputable  "  conduct.  The  Court  held 
that  the  advertisement  was  libellous,  and  that  the  pub- 
lisher of  the  Telegraph  was  liable  for  its  publication, 
even  though  the  publisher  of  the  Times  and  News  was 
suing  the  advertiser  at  the  same  time.1  The  plaintiff 
recovered  a  verdict  against  the  Telegraph  for  ,£500. 

The  responsibility  of  the  party  inserting  the  adver- 
tisement is  complete,  and  where  it  was  written  by  the 
agent  of  a  corporation,  under  express  or  implied  in- 
structions from  the  officers  of  the  corporation,  the  com- 
pany is  answerable  in  damages.  C.  C.  Souder,  a  for- 
mer agent  of  the  Howe  Machine  Company,  brought 
suit  against  the  company  for  the  publication  of  an  ad- 
vertisement inserted  by  an  agent  in  the  Columbus,  Ga., 
Inquirer,  August  7,  1874,  in  which  the  plaintiff  was 
called  "  a  diminutively  insignificant  and  contemptuously 
unreliable,  indolent,  and  dishonest  fellow."  A  verdict 
in  the  plaintiff's  favor  for  $1,500  was  affirmed.2 

If  a  libellous  article  is  copied  from  one  newspaper 
into  another,  the  publisher  of  the  newspaper  in  which 
it  is  reprinted,  and  the  exchange  editor  who  cut  it  out 
for  the  purpose,  are  liable  civilly  and  criminally ;  but 
the  fact  that  it  was  so  copied,  if  done  in  good  faith, 
may  reduce  the  amount  of  damages.  The  addition  of 
comments,  or  the  nature  of  the  heading  given  to  the 
reprinted  libel,  may  tend  to  increase  the  damages  by 

1  Harrison  v.  Pearce,  i  Foster  &  Finlason  (1858),  567. 

2  Souder  v.  Howe  Machine  Co.,  58  Ga.  64. 


PUBLICATION.  I33 

showing  actual  malice,  or  to  decrease  the  damages  by 
disproving  actual  malice.  The  addition  of  comments 
may  in  some  cases  even  destroy  the  libellous  character 
of  the  publication  altogether.  In  a  somewhat  noted 
case  in  England,  the  libel  consisted  in  the  following 
paragraph  published  in  the  True  Sun,  December  18, 
1832:  — 

Riot  at  Preston.  —  From  the  Liverpool  Courier.  —  It 
appears  that  Hunt  pointed  out  Counsellor  Seager  to  the 
mob,  and  said,  "  There  is  one  of  the  black  sheep."  The 
mob  fell  upon  him  and  murdered  him.  In  the  affray  Hunt 
had  his  nose  cut  off.  The  coroner's  inquest  have  brought 
in  a  verdict  of  wilful  murder  against  Hunt,  who  is  com- 
mitted to  gaol.  —  Fudge  ! 

Mr.  Hunt,  who  was  a  member  of  Parliament,  brought 
suit  for  libel  against  the  editor  of  the  True  Sun,  and 
pleaded  his  own  case.  The  defendant's  counsel  main- 
tained that  the  word  "Fudge  !"  which  formed  no  part 
of  the  reprinted  paragraph,  but  which  was  added  by 
the  editor  of  the  True  Sun,  was  added  for  the  purpose 
of  discrediting  the  story;  but  the  plaintiff  claimed  that 
it  was  added  solely  with  a  view  to  relying  upon  it  in 
defence  in  case  suit  were  brought  against  the  editor. 
It  was  not  disputed  that  the  publication  without  the 
word  "  Fudge  !  "  would  be  libellous.  Lord  Lyndhurst 
said  in  his  charge  to  the  jury  :  "  If  the  word  '  Fudge ! ' 
was  only  added  for  the  purpose  of  making  an  argument 
at  a  future  clay,  then  it  will  not  take  away  the  effect:  of 
the  libel."  He  held  that  the  only  question  was  that  of 
the  defendant's  motive,  and  that  that  question  was  one 
for  the  jury  to  decide.  A  verdict  in  the  plaintiff's 
favor  for  one  farthing  was  returned.1 

1  Hunt  v.  Algar  et  at.,  6  Carrington  &  Payne,  245. 

7 


l3* 


NEWSPAPER   LIBEL. 


The  proprietor  of  a  newspaper  is  ordinarily  responsi- 
ble for  the  entire  contents  of  the  paper,  including  the 
editorial,  news,  and  advertising  departments.  He  is  re- 
sponsible, criminally  as  well  as  civilly,  even  though  he 
had  no  knowledge  of  the  libellous  matter  until  after  it 
was  published.1  On  the  trial  of  a  newspaper  publisher, 
however,  on  a  criminal  charge  of  libel,  if  the  truth  of  the 
defamatory  matter  is  established,  the  prosecution  "must 
show  that  the  defendant  in  a  legal  sense  actually  par- 
ticipated in  or  authorized  the  publication,  and  that  he 
did  this  with  an  actual  malicious  intention,"2  and  sen- 
erally,  in  a  criminal  court,  negligence  or  blame  must  in 
some  way  be  shown  in  order  to  secure  the  conviction 
of  the  defendant.  A  presumption  of  criminality,  how- 
ever, is  easily  raised,  and  can  hardly  be  disproved  save 
by  evidence  that  the  defendant  has  been  a  victim  of 
fraud  on  the  part  of  his  employees.3 

A  proprietor  convicted  and  fined  on  a  criminal 
charge,  or  mulcted  in  damages  in  a  civil  suit,  cannot 
compel  the  editor  to  reimburse  him  for  his  loss,  even 
though  the  libel  was  inserted  by  the  editor  without  the 
proprietor's  knowledge.  The  proprietor  and  the  editor 
are  in  such  case  considered  joint  wrong-doers,  and  one 
of  two  joint  wrong-doers  cannot,  under  any  circum- 
stances, compel  the  other  to  indemnify  him  partially  or 
wholly  for  a  fine  or  verdict  which  he  is  required  to 
pay.4      In  this  case  the  proprietor's  wrong-doing  con- 

1  Commonwealth  7'.  Albert  Morgan  et  a/.  (Boston  Saturday  ET'ening  Ex- 
press, Sept.  ii  and  18,  1870),  107  Mass.  199. 

ommonwealth  v.   Robin  Damon  (Salem  Evening  News,  May  18,  1883), 
136  Mass.  449. 

c  ante,  p.  66. 
1  Hiram  Atkins   (Montpelier  Argus  and  Patriot)   v.  James  X.  Johnson, 
43  Vt.  7S.      (See  ante,  p.  57.) 


PUBLICATION. 


*35 


sists  in  failing  to  exercise  proper  vigilance  and  care  in 
the  selection  of  a  reliable  editor. 

Even  though  a  libel  was  published  in  the  proprietor's 
absence  and  without  his  knowledge,  by  an  agent  to 
whom  he  had  given  express  instructions  not  to  publish 
it,  still  the  proprietor  would  be  liable  in  a  civil  action  if 
the  agent  disregarded  his  instructions  and  published 
the  libel.  Major  John  P.  Dunn,  editor  of  the  Political 
Beacon,  an  Indiana  paper,  started  for  New  Orleans, 
leaving  the  paper  in  charge  of  his  foreman.  Before 
going,  he  stated  that  E.  W.  Jackson  would  hand  in  an 
article  for  publication,  and  especially  cautioned  the 
foreman  to  strike  out  anything  exceptionable,  personal, 
or  abusive,  in  Mr.  Jackson's  manuscript.  In  the  next 
issue  of  the  Political  Beacon,  which  bore  the  date  of 
March  17,  1843,  appeared  a  long  article  under  Mr. 
Jackson's  signature,  denouncing  John  B.  Hall,  publisher 
of  the  Democratic  Register.  The  following  extract  suf- 
ficiently indicates  the  tone  of  the  article  :  — 

I  now  charge  the  nasty  tool  with  being  a  gambler,  drunk- 
ard, fool  and  coward ;  a  slanderer,  and  a  poor  insignificant 
liar. 

In  conclusion,  Mr.  Hall  was  charged  by  implication 
with  the  crimes  of  seduction  and  infanticide.  Presum- 
ably the  foreman  failed  to  catch  the  defamatory  drift  of 
the  article.  At  all  events  Mr.  Dunn,  on  his  return  from 
the  South,  was  sued  for  libel,  and  compelled  to  pay  a 
verdict  of  $500. l 

The  case  of  Hall  v.  Dunn  was  a  civil  action.  In  a 
criminal  court,  on  the  contrary,  it  has  been  held  that  an 
editor  or  publisher  is  not  answerable  where  the   libel- 

1  Hall  v.  Dunn  ct  a!.,  i  Ind.  344. 


136 


NEWSPAPER   LIBEL. 


lous  matter  was  inserted  by  some  one  without  his 
order  and  against  his  will.1 

The  liability  of  the  proprietor  grows  out  of  the  rul- 
ing doctrine  in  the  law  of  agency  that  a  principal 
is  responsible  for  the  acts  of  his  agent  within  the 
general  scope  of  the  authority  which  he  has  conferred 
upon  the  agent.  The  proprietor  of  the  newspaper  "  may 
be  compared  to  one  who  keeps  a  dangerous  animal,  and 
who  is  bound  so  to  keep  it  that  it  does  no  harm  ;  if 
harm  ensues  he  must  answer  for  it."  2 

It  has  been  held  in  Massachusetts  that  a  publisher 
may  plead  in  defence  that  he  was  not  aware,  at  the  time 
the  alleged  libel  was  published,  that  it  had  reference  to 
any  individual,  the  writer  alone  in  such  case  being 
liable,3  but  this  decision  will  be  found  to  be  directly 
in  conflict  with  many  others. 

If  a  single  copy  of  the  newspaper  containing  the 
libel  is  published  (/.  e.,  sold  or  circulated)  in  the  State, 
even  though  it  was  printed  in  another  State,  civil  or 
criminal  proceedings  can  be  maintained  against  the 
author  or  publisher  in  either  the  State  where  the  paper 
was  printed,  or  where  the  one  copy  was  circulated,  or 
in  both  States. 

During  the  summer  of  1886  the  towns  of  El  Paso, 
Texas,  and  Paso  del  Norte,  Mexico,  frowned  at  each 
other  across  the  Rio  Grande,  while  the  two  republics 

1  Commonwealth  v.  Abner  Kneeland  (Boston  Investigator,  Dec.  20,  1833), 
Thacher's  Criminal  Cases,  346.  By  statute  in  Maine  (Revised  Statutes,  chap. 
129,  sec.  3),  the  proprietor,  editor,  printer,  or  publisher  of  a  newspaper  "  is 
responsible  for  any  libel  printed  or  published  therein,  unless  he  proves  on  trial 
that  it  was  printed  and  published  without  his  knowledge,  consent,  or  suspicion, 
and  that,  by  reasonable  care  and  diligence,  he  could  not  have  prevented  it." 

'-  Townshend  on  Slander  and  Libel,  p.  167,  note. 

*  Reuben  Smith  v.  David  F.  Ashley  (Springfield  Tri-Weekly  Pest),  11 
Metcalf  (1846),  367.     (See  this  case  cited  at  length  in  Chap.  IX.  on  Defences.) 


PUBLICATION.  I37 

grew  angry  and  shook  metaphorical  fists  across  the  same 
shallow  stream.     This  international  coolness  grew  out  of 
the  editorial  gymnastics  of  one  A.  K.  Cutting.     Cutting, 
a  citizen  of  the  United  States,  but  a  resident  of  Mexico, 
was  the  editor   and   publisher  of  the   El  Paso  Sunday 
Herald  and  the  Paso  del  Norte  Centinela.     A  Mexican 
named  Medina  had  issued  a  prospectus  of  a  newspaper 
to  be  established  by  him  in  Paso  del  Norte.     There- 
upon Cutting  published  in  the  English  department  of 
El  Centinela,  June  6,   1886,  a   statement  to  the  effect 
that  Medina  had  not  a  pound  of  type  or  a  dollar  to  buy 
any  with,  and  that  his  scheme  to  establish  a  newspaper 
was  a  myth.     Medina  deemed  this  a  libel,  and  carried 
the  case  into  the  Mexican  courts.     Cutting  went  into 
court   and  made  a  formal  retraction,  and   the  parties 
there  signed  an  "act  of  reconciliation."     Cutting  then 
republished   the   defamatory  statement  in  the  El  Paso 
Sunday  Herald,  a  paper  circulated  on  both  sides  of  the 
international  stream,  and  for  this  he  was  arrested  on 
the    Mexican    side  of  the    river  by  an    officer   of   the 
State  of   Chihuahua.     The    United  States   consul    re- 
ported to  the  State  Department  that  the  prisoner  was 
arrested  for  a  libel  published  in  the  United  States,  and 
Secretary  Bayard    demanded  of  the  Mexican    govern- 
ment his  immediate  release.     Mr.  Bayard  was  quoted 
in  an   interview  as  saying,  "  My  countrymen  .  .  .  will 
never  consent  that  one  of  their  fellow-citizens  shall  be 
tried  by  a  foreign  power  for  any  offence  committed  in 
this  country." 1     The    Mexican   court   ruled    that   the 
republication   of  the    defamatory  paragraph    in   Texas 
constituted  a  continuation  of  the  original  offence  com- 
mitted in  Mexico,  in  defiance  of  the  formal    "  act    of 

1  Boston  Globe,  Aug.  9,  1886. 


i38 


NEWSPAPER   LIBEL. 


reconciliation."  Evidence  was  also  received  of  the 
circulation  in  Paso  del  Norte  of  more  than  ten  copies 
of  the  Sunday  Herald  containing  the  republished  libel. 
Cutting  refused  to  defend  himself  at  the  trial,  and  was 
adjudged  guilty.  He  was  sentenced  to  imprisonment 
at  hard  labor  in  the  penitentiary  for  one  year  and  to 
pay  a  fine  of  $600,  and  to  serve  an  additional  term  of 
one  hundred  days  in  case  the  fine  was  not  paid. 
Troops  meanwhile  were  enrolled  by  thousands  in  Texas 
and  other  Southwestern  States  in  anticipation  of  war, 
and  all  on  account  of  the  erroneous  popular  supposi- 
tion that  an  American  citizen  had  been  arrested  in  a 
foreign  country  for  a  crime  committed  in  the  United 
States,  the  public  ignoring  the  fact  that  the  crime  was 
committed  in  every  State  and  country  where  the  libel 
was  circulated.  A  little  more  than  two  weeks  after 
receiving  his  sentence  Cutting  was  released  from  im- 
prisonment by  order  of  the  Supreme  Court  of  the  State 
of  Chihuahua.  The  Supreme  Court  approved  the 
decision  of  the  inferior  tribunal,  but  discharged  the 
prisoner  for  the  reason  that  Medina  had  waived  his 
right  to  a  civil  suit.1 

Every  sale  of  a  copy  of  the  libel  constitutes  a  dis- 
tinct offence,  and  an  action  can  be  maintained  if  there 
is  only  proof  that  one  copy  was  sold,  even  if  that  was 
sold  to  an  agent  of  the  plaintiff  with  a  view  to  bringing 
the  action.2  The  distribution  of  copies  of  a  news- 
paper by  carriers  or  other  agents  constitutes  publica- 
tion by  the  proprietor.3 

1  Associated  Press  despatch,  Aug.  24,  1886.  See  also  the  State  v.  Wm.  J. 
Kountz  (Allegheny,  Pa.,  Evening  Mail),  12  Mo.  Appeal  Reports    (1882),  511. 

2  Duke  of  Brunswick  v.  James  Harmer,  14  Adolphus  &  Ellis  (Eng.  Queen's 
Bench,  1849),  1S5.      (See  this  case  cited  at  length  in  Chap.  IX.  on  Defences.) 

8  Rcspublica  v.  Benjamin  Davis,  surety  for  William  Cobbett  (Porcu/ine's 
Gazette),  3  Veates  (Pa.  1S01),  128. 


PUBLICATION.  I39 

A  news  agent  is  responsible  for  any  libel  contained 
in  such  copies  of  the  paper  as  he  aids  in  circulating. 
Marie  Prescott,  the  actress,  brought  suit  against  the 
American  News  Company  for  the  circulation  of  the  fol- 
lowing libel :  — 

No  friend  with  the  needful  coming  forward,  they  cast  the 
ineradicable  stigma  of  bastardy  on  two  innocent  and  helpless 
little  children,  left  broken-hearted  the  actress  mother,  and 
recorded  of  the  woman  herself,  who  was  then  struggling 
hard  to  support  all  three,  that  she  had  become  a  certain 
man's  mistress. 

This  libel  was  contained  in  a  dramatic  weekly  called 
Nym  Crinkle,  August  6,  1881,  and  it  was  shown  that  the 
news  company  had  circulated  two  hundred  and  forty 
copies  of  the  paper.  The  jury  at  the  trial  term  of  the 
Superior  Court  awarded  the  plaintiff  $12,500  damages. 

A  news  agent's  liability  for  damages,  however,  is  not 
established  by  evidence  merely  that  some  one  had  an 
opporhcnity  to  read  the  libel  in  a  copy  of  the  paper  cir- 
culated by  him.  Thus,  in  the  case  just  cited,  it  was 
not  shown  that  any  person  had  read  any  one  of  the  two 
hundred  and  forty  copies  of  Nym  Crinkle  circulated  by 
the  American  News  Company,  and  it  was  accordingly 
held  at  the  general  term  of  the  Superior  Court  that 
there  was  not  sufficient  evidence  of  publication  to  sus- 
tain an  action  against  the  news  company,  for  a  libel  is 
not  published  in  a  legal  sense  until  it  is  communicated 
to  some  one  other  than  the  plaintiff.  The  judgment  of 
the  trial  term  was,  therefore,  reversed.1 

The  Mascot,  April  22,  18S2,  contained  a  cartoon 
representing  Watson  Van  Benthuysen  as  a  juggler  ma- 

1  Marie  Prescott  v.  Sinclair  Tousey,  president,  etc.,  50  N.  Y.  Superior  Court 
Reports  (1884),  12;  52  N.  Y.  Superior  Court  Reports  (18S5),  87. 


140  NEWSPAPER   LIBEL. 

nipulating  the  city  council  of  New  Orleans  in  the  interest 
of  the  railroads  of  which  he  was  president,  and  in  the 
letter-press  the  paper  attributed  bribery  to  him.  Van 
Benthuysen  brought  suit  against  Charles  E.  Staub,  a 
newsdealer,  for  libel,  basing  his  claim  for  damages  upon 
the  sale  of  a  copy  of  this  issue  of  the  Mascot  by  a  boy 
in  Staub's  employ.  Staub  in  defence  did  not  allege  or 
prove  ignorance  of  the  fact  that  the  paper  contained 
libellous  matter.  The  Supreme  Court  of  Louisiana 
held  that  one  who,  personally  or  by  his  agent,  sells  a 
libellous  newspaper,  is  responsible,  civilly  and  criminally, 
as  if  he  had  written  the  libel.  Van  Benthuysen  was 
awarded  $50  and  costs.1 

Every  newsdealer  is  legally  presumed  to  know  the 
contents  of  every  publication  which  he  handles,  even  if 
the  interval  between  the  time  when  he  receives  the  paper 
from  the  office  of  publication  and  the  time  of  his  deliv- 
ery of  it  to  the  purchaser  is  so  short  as  to  negative 
conclusively  the  possibility  of  actual  knowledge  of  the 
contents.  He  is  liable  even  in  his  absence,  where  the 
paper  containing  the  libel  is  received  and  sold  by  his 
employee,  unless  it  is  proved  that  the  paper  was  sold 
against  his  orders  or  secretly,  or  that  some  deceit  was 
practised  upon  him,  or  that  he  was  absent  under  such 
circumstances  that  the  presumption  of  his  connivance 
in  the  sale  is  conclusively  rebutted.2  A  similar  responsi- 
bility is  borne  by  "tvery  one  who  even  gives  away  a 
copy  of  the  libel,  unless  he  was  ignorant  of  its  con- 
tents ;  and  the  burden  of  proof  lies  upon  him  to  prove 
his  ignorance.3 

1  Van  Benthuysen  v.  Staub,  36  La.  Annual  Reports  (1884),  467. 

2  Folkard's  Starkie  on  Slander  and  Libel,  p.  429. 

8  Odgers  on  Libel  and  Slander,  p.  160.  "  If  a  newsboy  were  rich,  it  would 
be  unsafe  for  him  to  sell  papers  without  first  employing  a  lawyer  to  decide  whether 


PUBLICATION.  I4I 

Efforts  have  at  different  times  been  made  to  secure 
legislation  relieving  news  companies  of  responsibility 
for  libels  contained  in  newspapers  the  contents  of  which 
they  did  not  know,  and  which  they  aid  in  circulating. 
Such  a  bill  was  introduced  in  the  New  York  Legislature 
in  1884,  but  failed  of  passage.  The  Journalist)  April 
12,  1884,  said  :  — 

The  passage  of  this  bill  is  vital  to  the  liberty  of  the  press. 
As  the  law  stands  at  present,  the  American  News  Company 
are  compelled  to  be  censors  of  the  press  in  their  own 
defence.  They  have  sometimes  thrown  back  whole  editions 
of  papers  which  they  conceived  to  contain  libels  for  which 
they  might  be  made  to  suffer. 

Mr.  Greenleaf,  discussing  the  rule  that  one  who  dis- 
perses a  libel  is  criminally  guilty,  even  though  he  is 
ignorant  of  its  contents,  says:  "The  apparent  severity 
of  this  rule,  and  of  that  which  renders  the  owner  of  a 
shop  responsible  as  the  publisher  of  libels  sold  therein 
without  his  knowledge,  is  justified,  on  the  score  of  high 
public  expediency  or  necessity,  to  prevent  the  circula- 
tion of  defamatory  writings,  which  otherwise  might  be 
dispersed  with  impunity."  1 

Where  a  newspaper  is  owned  or  published  by  copart- 
ners, a  suit  or  criminal  proceedings  for  libel  may  be 
maintained  against  either  one  or  all  of  the  members  of 
the  firm;  and  all  the  partners  are  responsible  for  the 
express  malice  of  one  of  them.  It  was  so  held  in  the 
case  of  Rev.  Charles  D.  Lothrop  v.  Charles  H.  Adams 
et  al.  of  the  Springfield  Republican-  In  this  case  a 
verdict  in  favor  of  the  reverend  plaintiff  for  $1,000  was 

the  contents  were  libellous.     He  escapes  now  because  he  is  irresponsible."  —  The 
Journalist,  April  iS,  1885. 

1  Greenleaf  on  Evidence,  vol.  III.,  §  171. 

2  Lothrop  v.  Adams  et  al.,  133  Mass.  471. 

7* 


142  NEWSPAPER   LIBEL. 

sustained  by  the  Supreme  Judicial  Court,  the  suit  hav- 
ing been  brought  on  account  of  the  publication  of  the 
following  matter  in  the  Amherst  correspondence  of  the 
Republican,  September  12,  1876:  — 

The  trial  of  Rev.  Mr.  Lothrop  for  cruelty  to  his  family 
was  begun  before  the  First  Church  in  secret  session  last 
evening,  the  accused  not  being  present.  The  testimony 
covered  the  training  of  the  three  daughters  from  their  in- 
fancy up,  and  was  of  the  most  revolting  character,  involving 
brutal  horse-whippings  for  trivial  offences,  systematic  starv- 
ing, feeding  of  rott  n  meat,  and  positive  dishonesty  and 
faithlessness  in  his  family  relations. 

A  corporation  which  publishes  a  newspaper  may  be 
sued  for  libel,  precisely  as  an  individual.  It  has  some- 
times been  held  that  punitive  damages  cannot  be 
recovered  against  a  corporation  ;  but  generally  actual 
malice  on  the  part  of  the  officers  of  the  company  will 
sustain  a  claim  of  punitive  damages.  A  joint-stock 
association  may  likewise  be  sued  for  libel,1  but  the 
treasurer  of  a  joint  stock  association,  who  owns  a  ma- 
jority of  the  stock,  is  not  as  such  personally  liable. 
John  H.  Mecabe  brought  suit  against  George  Jones, 
of  the  New  York  Times,  for  a  libel.  It  appeared  that 
the  Times  was  published  by  a  joint-stock  association,  of 
which  Mr.  Jones  was  treasurer  ;  that  he  owned  a  ma- 
jority of  the  stock  and  exercised  some  supervision  over 
the  articles  which  appeared  in  the  paper,  but  did  not 
exercise  a  controlling  influence,  and  had  no  knowledge 
of  the  matter  complained  of  prior  to  its  publication. 
It  was  held  that  the  complaint  should  have  been  dis- 
missed, because  the  defendant  was  neither  proprietor, 

1  Henry  Van  Aernam  v.  Charles  W.  McCune,  president  of  the  Buffalo 
Courier  Co.,  39  N.  Y.  Supreme  Court  Reports  (1884),  316. 


PUBLICATION. 


J43 


publisher,  editor,  nor  printer,  and  not  liable  as  principal 
of  those  having  directly  to  do  with  the  publication.1 

Where  a  newspaper  establishment  has  been  assigned 
as  security  for  a  debt,  the  property  remaining  in  the 
sole  charge  of  the  assignor,  the  assignee  is  not  liable 
to  an  action  as  a  proprietor  of  the  paper.2 

A  receiver  of  a  partnership  or  corporation,  appointed 
to  manage  a  newspaper  published  by  the  corporation  or 
firm,  is  personally  responsible  for  any  libellous  matter 
contained  in  the  paper  while  under  his  charge.3  The 
receiver  may  not  be  sued,  however,  inasmuch  as  he  is 
an  officer  of  the  court ;  but  the  party  aggrieved  should 
present  a  petition  for  redress  to  the  court  appointing 
the  receiver.  Through  a  blunder  on  the  part  of  the 
receivers  of  Shibbs'  Weekly  Gazette,  the  name  of  a  solvent 
firm  was  published  in  a  list  of  bankrupts.  The  Court 
refused  to  allow  the  libelled  firm  to  proceed  at  law 
against  the  receivers,  but  directed  the  clerk  of  the 
court  to  inquire  and  certify  the  amount  of  damages 
resulting  from  the  libel.  The  clerk  awarded  the  peti- 
tioners ^"io,  and  the  Court  sustained  the  award,  order- 
ing the  damages  to  be  paid  out  of  the  estate,  but  the 
costs  to  be  paid  by  the  receivers  personally,  since  the 
libel  was  a  result  of  their  negligence.4 

The  mere  writing  of  a  libel  is  not  always  actionable. 
The  libel  must  be  communicated  to  some  one  other 
than  the  person  defamed,  and  such  communication  is 
called  publication.  While,  however,  writing  a  libel 
does  not  amount  to  publication,  it  is  nevertheless  evi- 
dence from  which  publication  may  be  inferred.     Thus, 

1  Mecabe  v.  Jones,  10  Daly  (N.  Y.  Common  Pleas,  1881),  222. 

2  Andres  v.  Wells  (Troy  Gazette),  7  Johnson  (N.  Y.  1810),  260. 

3  Marten  v.  Van  Schaick  et  <;.'.,  4  Paige  (N.  Y.  1834),  479. 

4  Stubbs  v.  Marsh,  15  Law  Times,  new  series  (Eng.  1866),  312. 


144 


NEWSPAPER   LIBEL. 


if  a  libel  has  been  published  in  a  newspaper,  and  a 
copy  of  the  same  libel  in  the  defendant's  handwriting 
is  introduced  in  evidence,  the  burden  of  proof  will  be 
thrown  upon  the  defendant  to  show  that  he  is  not 
responsible  for  the  publication.  The  defendant  may 
be  proved  to  be  the  author  of  the  libel  by  the  testimony 
of  penmanship  experts,  based  upon  a  comparison  of  the 
defendant's  handwriting  with  the  copy  furnished  to  the 
newspaper.  In  the  Charleston,  S.  C,  Mercury  was 
published  the  following  notice  :  — 

Obituary.  —  Departed  this  life,  on  the  2d  day  of  April, 

at  Hickory  Hill,  in  Prince  William's  Parish,  Mrs.  Rebecca 

McBride,  in  the  95th  year  of  her   age.     The    editor   will 

publish  the  above  obituary,  and  oblige  the  subscriber. 

Respectfully,  W.  Bowers. 

April  4th,  1853. 

It  appeared  that  Mrs  McBride  was  living,  although 
at  no  such  advanced  age  as  indicated  in  the  obitu- 
ary notice.  Suspicion  regarding  the  authorship  of  the 
notice  was  directed  against  Daniel  H.  Ellis,  Mrs.  Mc- 
Bride's  next-door  neighbor  at  Hickory  Hill,  and  suit 
was  brought  against  him  by  the  libelled  woman  and 
Burwell  McBride,  her  husband.  Ellis  denied  having 
written  the  obituary,  but  the  manuscript  was  proved  to 
be  in  his  handwriting,  and  a  verdict  for  $30  against  him 
was  recovered.1 

Although  it  is  not  actionable  merely  to  write  defama- 
tory matter,  still,  if  the  writing  is  afterward  published, 
even  if  it  is  taken  from  the  author  by  force  or  fraud,  he 
will  be  liable  to  either  indictment  or  civil  action.  The 
reason  for  this  apparently  harsh  doctrine  is,  that  the 
writing  and  preserving  of  the  libel  were  in  themselves 

1  McBride  et  ux.  t'.  Ellis,  9  Richardson's  Law  Reports,  313. 


PUBLICATION. 


J45 


wrongful  acts,  for  the  proximate  consequences  of  which 
the  author  is  responsible.  He  -cannot  excuse  himself 
by  showing  the  wrongful  act  of  another.1  Even  if  the 
libel  is  published  through  an  accident,  the  publisher  is 
liable,  provided  he  has  been  guilty  of  any  negligence. 
Thus,  in  an  English  case,  the  name  of  a  solvent  firm 
was  inserted  under  the  head,  "First  Meetings  Under  the 
Bankruptcy  Act,"  in  making  up  the  forms  of  the  Book- 
seller, instead  of  being  inserted  under  the  head,  "  Dis- 
solutions of  Partnerships."  The  plaintiff  was  given  a 
verdict  for  £$o.~ 

To  prove  responsibility  for  the  libel  against  the  writer, 
it  is  necessary  to  produce  the  original  manuscript,  or  ac- 
count for  its  absence.3  Copy,  however,  is  not  generally 
long  preserved  in  newspaper  offices,  and,  accordingly,  if 
the  manuscript  cannot  be  found,  or  if,  being  in  the 
defendant's  hands,  he  refuses  to  give  it  up,  a  copy  of  the 
newspaper  containing  the  libel  may  be  introduced  in 
evidence.  Such  copy,  with  proof  that  the  defendant 
composed  the  libel,  and  gave  or  sent  it  to  the  editor  for 
publication,  is  sufficient  evidence  of  publication  by  the 
writer.4  Before  an  alleged  libel  can  be  submitted  to 
the  jury,  a  prima  facie  case  against  the  defendant  as 
author  of  the  libel  must  be  made  out ;  but  it  is  sufficient 
to  show  that  the  defendant  threatened  to  write  the 
libel.5  Liability  may  be  established  by  proving  that  the 
defendant  paid  the  publisher  of  the  newspaper  for  the 

1  Townshend  on  Slander  and  Libel,  p.  159.  But  see  Odgers  on  Libel  and  Slan- 
der, p.  160. 

2  Shepheard  v.  Whitaker,  English  Law  Reports,  10  Com.  Pleas  (1875),  502. 

3  Schenck  v.  Schenck  (Somerset  Messenger),  Spencer  (N.  J.  1843),  208. 

4  Samuel  Woodburn  v.  Robert  Miller  (Columbia,  S.  C,  Times),  Cheves' 
Law  Reports  (1840),  194. 

5  Bent  &  CottrelU'.  T.  H.  Mink  et  al.  {Cedar  Post,  Chicago  Journal, 
Chicago  Inter-Ocean,  Davenport  Democrat),  46  Iowa  (1S77),  576. 


146  NEWSPAPER   LIBEL. 

insertion  of  the  defamatory  matter ; l  and  generally, 
everyone  who  requests  or  procures  another  to  publish  a 
libel  is  answerable  as  though  he  published  it  himself  ; 
and  a  request  may  be  inferred  from  his  conduct,  as 
where  he  sends  the  libel  to  the  editor  of  a  newspaper, 
even  though  he  makes  no  formal  request  that  it  be 
published. 

In  an  action  against  the  writer  of  a  libel,  it  is  no  de- 
fence that  the  libel  was  not  printed  exactly  as  it  was 
written,  provided  the  alterations  or  omissions  did  not 
tend  to  aggravate  its  defamatory  character.2  One  who 
writes  an  article  and  employs  another  person  as  his 
agent  to  translate  it  into  another  language  and  publish 
it,  will  be  liable  if  the  article  as  translated  and  published 
is  libellous,  although  the  translation  is  inaccurate. 
This  is  under  the  general  rule  in  the  law  of  agency, 
already  referred  to,  that  the  principal  is  responsible  for 
the  acts  of  his  agent  within  the  general  scope  of  his 
authority.3 

A  person  who  makes  a  defamatory  statement  to  a 
reporter,  intending  it  for  publication,  is  liable  both  civ- 
illy and  criminally,  and  his  liability  is,  of  course,  shared 
by  the  reporter  and  all  others  who  aid  in  publishing  the 
libel  to  the  world.  One  Cassius  M.  Clay  gave  to  a  re- 
porter for  the  Streator,  111.,  Pioneer  the  facts  regarding 
an  alleged  assault.  The  report  was  written  up  under 
the  heading,  "Brutality  —  Two  Young  Women  Maltreat 
Their  Mother."  After  the  matter  was  in  type,  it  was 
read  to  Mr.  Clay  from  a  proof.     He  said,  "  It  was  a 

1  Schenck  v.  Schcnck,  cited  above. 

2  Benjamin  T.  Snyder  v,  Cassius  M.  Strader  et  al.  (Macomb  Eagle),  67  111. 
(1873),  404. 

A  Wilson  v.  Noonan  {Banner  and  Volksfreund),  23  Wis.  (1868),  105; 
27  Wis.  (1871),  598. 


PUBLICATION. 


M7 


little  rough,  but  it  was  true  " ;  and  "  Let  it  go."  He 
was  indicted  for  libel,  convicted,  and  lined  $300  and 
costs.1 

Where    two    distinct   publications    are    made  of   the 
same  libel,  a  defendant  who  was  only  concerned  in  the 
first  publication  would  not  be  liable  for  damages  which 
resulted   solely  from   the    second.     John   Clifford  had 
been  appointed  architect  for  the  new  city  hall  of    San 
Francisco.      The   Chicago    Times   published    a   report 
of  an  interview  with  John  C.  Cochrane,  another  archi- 
tect, in  which  the  latter  was  quoted  as  saying  that  Clif- 
ford was  insane,  and  that  his  appointment  would  be  a 
public  calamity.     This  interview  was  copied  from  the 
Times  into  the  San  Francisco  Chronicle,  and,  as  Clifford 
claimed,  it  resulted  in  his  bondsmen  withdrawing  as 
sureties  on  his  bond,  whereby  he  was  forced  to  resign. 
Clifford  then  sued  Cochrane  for  $50,000,  alleging  as 
special  damage  the  loss  of  his  position.     The  Appellate 
Court  held  that  the  language  was  actionable  per  se,  but 
that  the  claim  of  special  damage  could  not  be  sustained, 
because  the  claim  was  based  upon  the  publication  in 
the  Chronicle,  for  which  Cochrane  was  not  responsible. 
"  It  would  seem,"  said  the  Court,  "both  on  principle 
and  authority,  that  no  liability  attaches  to  the  author 
of  the  libel  for  such  reproduction,  unless  it  is  made  by 
his  authority  or  consent,  either  express  or  implied."  2 

1  People  v.  Clay,  86  111.  (1877),  147. 

2  Clifford  v.  Cochrane,  10  Bradweli  (111.  1882),  577. 


l48  NEWSPAPER   LIBEL. 


CHAPTER   VI. 

LANGUAGE   WHICH    IS    LIBELLOUS. 

Says  Christian  in  his  notes  upon  Blackstone's  "  Com- 
mentaries ":  l  "The  words  'scoundrel,'  'rascal,'  'vil- 
lain,' 'knave,'  'miscreant,'  'liar,'  'fool,'  and  such  like 
general  terms  of  scurrility,  may  be  used  with  impunity, 
and  are  part  of  the  rights  and  privileges  of  the  vulgar." 
The  vulgar  should,  however,  bear  in  mind  that  they 
must  exercise  their  rights  and  privileges  in  this  respect 
with  the  tongue  and  not  with  the  pen,  for  all  of  these 
terms  of  abuse  are  actionable  if  employed  in  writing  or 
in  print.-  It  has  repeatedly  been  held  that  words 
which  would  not  be  actionable  if  spoken  may  be  so  if 
printed,3  on  account  of  the  greater  deliberation  which 
is  presumed  to  have  accompanied  the  writing  of  a  libel, 
and  on  account  of  its  permanence  and  wider  dissemi- 
nation. On  the  other  hand,  all  matter  which,  if  spoken, 
is  slanderous,  is  libellous  if  written  or  printed. 

Any  publication  imputing  to  a  person  disgraceful  or 
dishonest  conduct,  or  which  is  injurious  to  his  reputa- 
tion or  business  credit,  or  exposes  him  to  hatred,  con- 
tempt, or  ridicule,  or  causes  him  to  be  shunned  by  his 
neighbors,  is  libellous.4     The  action  can,  however,  be 

1  Book  iii.,  p.  125. 

2  See  Townshend  on  Slander  and  Libel,  §  177. 

3  Benajah  Johnson  v.   Columbus   Stebbins   {Spirit  of  the    West),    5   Ind. 
1854),  364. 

4  Language  which  in  this  chapter  is  said  to  be  libellous  is  only  prima  facie 


LANGUAGE   WHICH    IS   LIBELLOUS.  j49 

maintained  only  on  the  ground  of  injury  to  the  reputa- 
tion, and  injury  to  the  feelings  alone  is  not  enough  to 
sustain  it.1  Words  are  equally  libellous  if  used  ironi- 
cally or  disguised  in  satire  or  cipher,  or  if  ungrammati- 
cal  or  ambiguous,  or  if  the  object  of  attack  is  not 
named,  but  only  hinted  at ;  it  is  only  necessary  that 
the  true  meaning  of  the  libel  be  understood  by  some 
person  other  than  the  author  and  the  person  who 
claims  that  it  is  defamatory  of  himself.  A_  publication 
is  not  libellous,  however,  unless  it  is  possible  to  iden- 
tify the  person  or  persons  defamed.  Thus,  it  is  not  ac- 
tionable to  publish  a  charge  that  every  lawyer  is  a 
thief,  or  that  every  physician  is  a  quack.  If  the  plain- 
tiff can  show  that  the  publication  was  designed  as  an 
attack  upon  him,  and  that  readers  so  understood  it,  he 
has  a  good  right  of  action. 

A  publication  may  be  actionable  although  it  does 
not  charge  a  crime.  In  the  New  York  Sunday  Mer- 
cury, October  13,  1867,  was  made  the  following  "as- 
sault upon  the  King's  English"  :  — 

Strange  but  True.  —  The  Moffatt  mansion  in  a  new 
light.  .  .  . —  Click,  click,  click,  the  sound  of  the  sewing- 
machine,  the  sharp  jerk,  the  incessant  whir  of  the  instru- 
ment, is  heard  from  early  morning  till  late  in  the  evening  — 
heard,  too,  as  proceeding  from  the  garret  of  a  boarding-house 
on  University  Place.  ...  In  this  garret,  or  attic,  live,  or  at 
least  breathe,  two  females,  the  one  a  very  nice  old  person, 
evidently  by  birth  and  education,  if  not  by  present  position, 
a  lady;  the  other  younger,  but  looking  as  old,  if  not  more 
elderly,  than  her  companion.  .  .  .  And  yet  these  poor,  hard- 
working people  are  ladies  born  and  bred,  women  who  once 

actionable,  being  subject,  of  course,  to  the  defences  of  truth,  privilege,  etc.  (See 
Chapters  VII.  and  IX.) 

1  Samuel  Samuels  v.  The  Evening  Mail  Association,  13  N.  Y.  Supreme 
Court  Reports  (1875),  5. 


I5o  NEWSPAPER    LIBEL. 

lived  in  an  almost  palace.  Females  whose  near  relatives 
are  at  this  moment  living  in  affluence  upon  the  wealth,  a 
portion  of  which,  at  least,  is  in  honor  and  feeling  to  nature, 
if  not  in  the  technicalities  of  the  law,  their  own.  In  other 
words,  these  women  are  the  mother  and  sister  of  Dr.  Mof- 
fatt,  recently  deceased,  the  millionaire  physician,  whose  Life 
Pills  and  Phoenix  Bitters  had  in  their  day  a  world-wide  popu- 
larity, netting  the  inventor  millions.  .  .  . 

In  a  suit  by  Maria  Moffatt  against  William  Cauldwell 
et  al.  for  this  publication,  the  defendants  having  de- 
murred to  the  complaint,  the  Court  held  that  the  article 
was  libellous,  as  tending  to  hold  the  plaintiff  up  to  rid- 
icule, and  it  was  declared  to  be  no  defence  that  the 
article  contained  no  charge  save  that  of  poverty,  and 
that  "  poverty  is  no  crime."' * 

A  patent-medicine  concern  secured  the  publication 
in  the  Atlanta  Constitution  of  an  interview  which  pur- 
ported to  have  taken  place  between  a  Constitution  re- 
porter and  one  Louise  Stewart,  in  which  Miss  Stewart 
related  how  her  mother  had  been  bitten  by  a  cat.  Miss 
Stewart  was  quoted  as  glibly  telling  how  her  mother 
had  suffered  great  pain  after  receiving  the  bite,  and 
had  acted  like  a  cat,  purring  and  mewing  and  assum- 
ing the  attitude  of  a  cat  in  the  effort  to  catch  rats. 
The  interview  concluded  in  the  usual  way  by  a  state- 
ment of  a  remarkable  cure  effected  by  the  advertiser's 
patent  medicine.  Miss  Stewart  sued  the  medicine  con- 
cern for  libel,  alleging  that  the  interview  was  altogether 
false.  The  Supreme  Court  held  on  demurrer  that  if 
false,  the  publication  was  libellous,  as  exposing  the 
plaintiff  to  contempt  and  ridicule.  It  was  said  that 
the  article  would  "  tend  to  lower  her  reputation  as  a 

1  Moffatt  v.  Cauldwell  et  al.,  10  N.  Y.  Supreme  Court  Reports,  26. 


LANGUAGE   WHICH   IS   LIBELLOUS.  I5I 

sensible,  modest,  and  dutiful  daughter,  because  she 
furnished  for  publication  such  foolish  and  ridiculous 
conduct  of  her  mother."  * 

William  Black  sued  John  Dick,  the  publisher  of 
Bow  Bells,  for  printing  in  that  magazine  in  November, 
1886,  a  biographical  notice  of  the  novelist,  which  in- 
cluded the  following  statement:  — 

Lately  an  appeal  was  made  to  him  to  assist  an  aunt  who 
had  done  much  for  him  when  he  was  young.  She  had  a 
small  income  of  her  own,  and  only  needed  two  shillings  and 
sixpence  a  week  to  keep  her  out  of  the  poorhouse,  but  Mr. 
Black  would  not  pay  it. 

Mr.  Black  proved  that  the  charge  was  false,  and  that 
he  never  had  an  aunt,  and  he  was  given  a  verdict  for 
.£100. 9 

It  is  said  that  both  the  daughters  are  illegitimate  children 
of  the  adopted  father's  intimate  friend,  and  were  raised  by 
him  in  a  spirit  of  philanthropy. 

This  paragraph,  published  in  the  New  York  Sun, 
December  2,  1882,  was  held  to  be  libellous  per  se,  at 
the  suit  of  one  of  the  daughters  referred  to.3 

The  principle  is  generally  maintained  that  "scan- 
dalous matter  is  not  necessary  to  make  a  libel ;  it  is 
enough  if  the  defendant  induce  an  ill  opinion  to  be 
had  of  the  plaintiff,  or  make  him  contemptible  and 
ridiculous."4  Howard  Paul,  at  a  dinner  given  by  the 
Clover  Club  in  Philadelphia,  told  a  story  of  Dickens' 
second  visit  to  America,  when  he  was  accompanied 
by  a  "strong,  vigorous,  able-bodied  compatriot  named 

1  Louise  Stewart  v.  Patent  Medicine  Co.,  76  Ga.  (1886),  280. 

2  Philadelphia  Press,  Jan.  8, 1887. 

3  Mary  H.  Shelby  v.  the  Sun  Printing  and  Publishing  Association,  38  Hun 
(X.  Y.  Supreme  Court),  474. 

4  Folkard's  Starkie  on  Slander  and  Libel,  p.  157. 


I52  NEWSPAPER   LIBEL. 

Dolby."  He  quoted  Dickens  as  saying  of  Dolby : 
"  '  He  possessed  unlimited  capacity  for  eating  and  drink- 
ing, and  had  noble  digestive  powers.  When  anybody 
called  on  me  and  suggested  a  drink,  I  gently  deputed 
Dolby  to  do  it  for  me.  When  I  was  asked  out  to 
dinner  and  could  n't  conveniently  attend,  Dolby  turned 
up  as  my  representative  and  occupied  my  place.'"  Mr. 
Paul  said  in  conclusion :  "  Shortly  after  this  I  met 
Dolby  at  a  club,  and  he  was  relatively  a  wreck.  The 
incessant  gorging  and  cocktailing,  whiskey  souring, 
champagning,  liquoring,  and  other  alcoholic  frivolities, 
had  done  their  fell  work."  Mr.  Paul's  speech  was 
published  in  the  Philadelphia  News  and  copied  into 
the  London  Tit-Bits,  whereupon  Mr.  Dolby  sued  the 
proprietor  of  Tit-Bits  for  libel.  Mr.  Justice  Stephen 
charged  the  jury  adversely  to  the  defendant,  and  a 
verdict  in  favor  of  Mr.  Dolby  for  .£100  was  returned.1 
In  a  criminal  case,  the  Supreme  Court  of  Ohio 
declared  the  following  language  to  be  libellous:  — 

On  Saturday,  we  are  informed,  the  house  of  T.  S.  Col- 
lins, where  the  stolen  goods  were  supposed  to  be  secreted, 
was  searched,  but  no  trace  was  found. 

"  No  one  could  read  the  article  set  out,"  said  the 
Court,  "  assuming  its  statements  to  be  true,  without 
regarding  it  as  seriously  reflecting  on  the  character  of 
Collins.  It  directed  public  attention  to  the  fact  that 
the  circumstances  implicating  him  in  the  larceny,  or  in 
receiving  and  secreting  the  goods  stolen,  were  suffi- 
ciently suspicious  to  justify  a  search  of  his  house  for 
their  recovery."  2 

The  Court  held  in  the  case  of  Edward  B.  Wesley,  of 

1  Philadelphia  News,  March  9,  1887. 

2  The  Stater'.  Smily,  37  Ohio  State  Reports  (1S81),  34. 


LANGUAGE   WHICH    IS   LIBELLOUS. 


*53 


the  New  York  Times,  v.  James  Gordon  Bennett,  of  the 
New  York  Herald  ( tried  in  1857),  that  where  language 
is  not  ambiguous  it  is  to  be  construed  in  its  ordinary 
sense,  without  reference  to  the  manner  in  which  it  was 
either  understood  or  intended ;  and  ambiguity  will  not 
protect  the  writer  or  publisher  if  the  readers  are  justi- 
fied in  construing  it  in  a  libellous  sense.  It  was  further 
held  that  where  the  words  have  two  meanings,  one 
harmless  and  the  other  defamatory,  the  case  should  go 
to  the  jary  on  the  question  of  the  effect  produced  by 
the  libel,  whether  injurious  or  not.1 

Where  an  alleged  libel  is  ambiguous,  it  may  be  ex- 
plained by  witnesses,  and  its  defamatory  character  may 
be  established  by  their  testimony.  Lawrence  Quenzer 
published  in  the  New  York  Demokrat,  April  14,  1856, 
an  article  concerning  Conrad  Wachter,  for  which  a  suit 
for  libel  was  brought.  The  article  was  in  German,  and 
an  English  translation  was  introduced  in  evidence.  It 
charged  Wachter  with  having  "made  himself  invisible 
on  account  of  too  much  borrowing  and  not  paying." 
The  writer  went  on  to  say:  — 

It  is  a  fine  thing  if  a  man  can  pass  anywhere  and  show,  if 
demanded,  his  bare  back,  but  there  are  people  who  dare  not 
very  well  show  it,  because  there  would  be  found  the  Swiss 
gallows  upon  it. 

The  Court  allowed  the  plaintiff  to  show  in  evidence 
that  the  expression  "  Swiss  gallows  "  is  commonly  un- 
derstood by  Germans  as  implying  that  the  person  with 
whose  name  it  is  coupled  had  been  branded  on  the  bare 
back  with  a  hot  iron  for  some  criminal  offence.  A  ver- 
dict for  $2,000  was  sustained  by  the  Court  of  Appeals.2 

1  Wesley  v.  Bennett,  5  Abbotts'  Practice  Reports,  498. 

2  Wachter  v.  Quenzer,  29  N.  Y,  547. 


154  NEWSPAPER   LIBEL. 

One  James  L.  Arnott  sought  reappointment  as  post- 
master of  Thompsonville,  Conn.  This  fact  provoked  the 
Bridgeport  Standard 'to  say  that  Senator  Eaton  would  not 
recommend  "a  thief,  a  jail-bird,  or  a  sneak  like  Arnott" 
for  the  position.  Thereupon  a  jury  was  charged  with 
the  task,  as  literary  critics,  of  deciding  whether  these 
words  implied  that  Arnott  was  a  thief,  jail-bird,  and 
sneak,  or  whether  they  amounted  merely  to  the  charge 
of  being  a  sneak.  The  defendant  undertook  to  prove 
the  truth  of  the  latter  charge,  and  denied  having  made 
any  other,  claiming  that  the  word  "  and  "  would  have 
been  used  instead  of  "or"  if  it  had  been  intended  to 
call  the  postmaster  by  all  three  names.  The  jury  found 
for  the  defendant,  and  the  plaintiff  appealed.1 

In  case  the  language  is  ambiguous,  and  the  name  of 
the  person  who  claims  to  have  been  defamed  is  not  pub- 
lished, his  acquaintances  may  state  in  evidence  their 
understanding  of  the  meaning  of  the  libel,  and  may 
testify  that  it  refers  to  the  plaintiff.  For  writing  the 
following  "fable,"  which  was  published  in  the  Tunxis 
Valley  Herald,  Martin  L.  Parsons,  first  selectman  of  the 
town  of  Farmington,  Conn.,  was  made  a  defendant  in 
the  Superior  Court :  — 

A  Fable.  —  A  certain  pompous  toad,  whose  own  estimate 
of  himself  was  greatly  in  excess  of  his  true  value,  imagined 
himself  a  lawyer,  and,  procuring  a  bondsman,  got  himself 
appointed  by  a  Court  of  Probate  administrator  on  a  certain 
estate ;  but  desiring  to  build  a  pedestal  to  raise  himself  to 
great  political  distinction  he  spent  the  money  of  the  estate 
for  one  of  straw,  which  was  totally  inadequate  to  support  so 
great  a  statue ;  the  result  being  his  inability  to  pay  up  the 
allowances  of  the  court.     His  bondsman  had  to  be  notified, 

1  W.iterbury  American,  Feb.  10,  1888. 


LANGUAGE   WHICH    IS   LIBELLOUS.  155 

and  the  dishonest  toad  had  to  be  disbarred  from  the  practice 
of  his  profession. 

Moral.  —  A  toad  will  be  a  toad  in  spite  of  his  croakings, 
and  notwithstanding  his  surroundings. 

John  F.  Wynne,  of  Unionville,  Conn.,  showed  that 
the  fable  referred  to  him,  but  that  the  defamatory- 
charges  contained  in  it  were  false.  He  recovered  a 
verdict  for  $1,100.' 

Where  the  libel  refers  to  the  plaintiff  by  name,  it 
cannot  be  shown  in  defence  that  some  other  person 
was  intended.  A  Detroit  Free  Press  reporter  found 
upon  the  Police  Court  record  a  statement  that  "John 
Finnucan  "  had  been  arrested  for  stealing  a  coat.  In 
the  Free  F/rss  the  next  morning  it  was  stated  that 
"John  Finnegan  "  had  been  so  arrested.  The  Detroit 
directory  contains  the  names  of  several  "John  Finnu- 
cans,"  and  also  the  name  of  Ex-Alderman  "John  D. 
Finnegan."  The  ex-alderman,  the  only  John  Finnegan 
in  Detroit,  brought  suit  for  $10,000,  and  an  intelligent 
jury  gave  him  a  verdict  for  $1,500  for  the  libel.  An 
appeal  was  taken  to  the  Supreme  Court.2 

It  is  quite  immaterial  what  meaning  the  writer  in- 
tended his  words  to  convey.  Every  person  is  legally 
presumed  to  intend  the  natural  consequences  of  his 
own  acts.  The  tendency  of  the  publication,  the  man- 
ner in  which  readers  understand  it,  is  alone  in  issue ; 
but  the  absence  of  wrongful  intent  will  work  mitigation 
of  damages.  When,  however,  the  alleged  libel  is  sub- 
ject to  the  law  of  privileged  publications,  the  question 
of  intent,  or  malice,  becomes  important,  for  a  privileged 
publication   is  not   actionable,   even   if  false,  unless   it 

1  Hartford  Times,  Feb.  10,  1888. 

2  Detroit  Free  Press,  March  u,  1888. 


156  NEWSPAPER   LIBEL. 

appears  that  the  writer  or  publisher  was  actuated  by 
express  malice  or  ill-will. 

When  either  pecuniary  loss  or  loss  of  reputation  fol- 
lows a  defamatory  publication  as  a  necessary  consequence, 
the  language  is  said  to  be  libellous  per  se,  and  in  such 
case  no  proof  of  actual  or  special  damage  need  be 
presented  to  sustain  either  civil  or  criminal  proceed- 
ings. When,  on  the  other  hand,  such  loss  follows  as  a 
natural  and  proximate,  but  not  as  a  necessary  conse- 
quence, evidence  of  actual  damage  must  be  adduced 
to  sustain  the  action.  If  loss  is  neither  a  necessary 
nor  a  natural  and  proximate  result  of  the  publication, 
the  language  is  under  no  circumstances  libellous.1  The 
actual,  or,  as  it  is  usually  termed,  "special,"  damage 
must  be  a  loss  of  some  material  temporal  advantage.2 
Wherever  an  action  cannot  be  maintained  without  proof 
of  special  damage,  there  is  no  criminal  liability. 

There  was  published  in  Bradstreefs  Daily  Sheet  of 
Changes,  January  15,  1878,  the  following  line  :  — 

Chattels.  —  Newbold  &  Sons  to  J.  R.  Burns. 

James  F.  Newbold  et  al.  brought  suit  against  J.  M. 
Bradstreet  &  Son  for  libel,  claiming  that  the  few 
words  quoted  implied  that  they  had  given  a  chattel 
mortgage  —  an  implication  which  would  tend  to  injure 
their  credit.  They  maintained  that,  as  a  matter  of 
fact,  they  had  only  released  a  chattel  mortgage  which 
they  had  held.  The  Court  ruled  that  the  words  were 
not  libellous  per  se,  and  that  hence  they  were  not 
actionable  without  proof  of  special  damage.3  The 
Messrs.    Newbold  could  only  sustain    their  action   by 

1  Townshend  on  Slander  and  Libel,  p.  217. 

-  Townshend,  p.  318. 

s  Newbold  et  al.  v.  The  J.  M.  Bradstreet  &  Son,  57  Md.  38. 


LANGUAGE   WHICH  IS   LIBELLOUS.  IS7 

evidence  of  actual  losses  in  their  business  growing  out 
of  the  publication. 

In  a  case  where  the  language  is  not  libellous  on  its 
face,  the  plaintiff  must  not  only  show  special  damage, 
but  he  must  show  that  the  defendant  knew  the  injurious 
character  of  the  words  at  the  time  when  they  were 
published.  Joseph  W.  Caldwell  brought  suit  against 
Henry  J.  Raymond  et  al.  for  the  publication  of  the  fol- 
lowing notice  in  the  New  York  Times :  — 

Married. — Joseph  W.  Caldwell  to  Elizabeth  Ehle,  late 
of  New  York. 

Mr.  Caldwell  denied  the  truth  of  the  notice,  asserting 
that  the  Ehle  woman  was  a  notorious  prostitute.  He 
failed  to  show  that  the  defendants  had  actual  knowledge 
of  the  woman's  bad  character  at  the  time  of  publica- 
tion, and  for  this  reason  his  complaint  was  dismissed. 
In  rendering  its  opinion,  the  Court  said  :  "  A  publisher 
may  be  liable  for  a  publication  of  an  article  clearly 
libellous,  which  was  inserted  in  his  paper  without  his 
knowledge  or  consent ;  but  not  when  he  is  not  shown 
and  cannot  be  presumed  to  have  known  that  the  article 
was  intended  to  bear  an  injurious  meaning."  x 

A  letter  to  the  editor,  from  the  widow  of  Lieut.-Col. 
Kimball,  was  published  in  the  New  York  Herald,  con- 
taining the  following  words  :  — 

Among  the  papers  referred  to  as  returned  to  me  are  my 
own  private  letters,  scattered  indiscriminately  among  the 
others,  and  returned  to  me  after  having  been  in  the  hands 
of  a  prostitute.  .  .  .  She  is.  I  understand,  under  the  pat- 
ronage or  protection  of  a  Mr.  More,  agent  of  the  Central 
railroad,  who  has  also  employed  the  orderly  of  my  late 
husband. 

1  Caldwell  v.  Raymond  et  al.,  2  Abbotts'  Practice  Reports  (1855),  193. 
8 


,S8  NEWSPAPER   LIBEL. 

The  Court  of  Appeals,  at  the  suit  of  Mr.  More,  held 
that  the  language  was  libellous,  without  its  being 
alleged  in  the  complaint  that  the  woman  was  under  his 
patronage  or  protection  for  an  immoral  purpose.1 

To  constitute  language  libellous  per  se,  that  is,  action- 
able without  proof  of  special  damage,  "the  nature  of  the 
charge  itself  must  be  such  that  the  Court  can  legally 
presume  he  [the  plaintiff]  has  been  degraded  in  the 
estimation  of  his  acquaintances  or  of  the  public,  or  has 
suffered  some  other  loss  either  in  his  property,  char- 
acter, or  business,  or  in  his  domestic  or  social  relations, 
in  consequence  of  the  publication."  Such  was  the  rul- 
ing of  the  Court  in  the  case  of  James  Fenimore  Cooper 
v.  William  L.  Stone.  This  was  one  of  a  remarkable 
series  of  libel  suits  brought  by  the  irascible  novelist,  in 
consequence  of  political  differences,  against  a  number 
of  Whig  editors.2     Cooper  bad  obtained  judgment  for 


t 


1  John  H.  More  v.  James  Gordon  Bennett,  48  N.  Y.  (1872),  472  (reversing  33 
Howard's  Practice  Reports,  177,  and  48  Barbour,  229.) 

-  Mr.  Cooper  always  appeared  in  court  as  his  own  counsel,  and  he  generally 
disproved  by  his  success  the  trite  aphorism  that  "  a  man  who  is  his  own  lawyer 
has  a  fool  for  a  client." 

"  He  next  sued  Thurlow  Weed,  and  obtained  a  verdict  for  $400  damages. 
Mr.  Weed  incautiously  began  at  once  to  taunt  the  novelist  in  view  of  the  small 
sum  allotted  him.  He  described  Cooper's  character  as  worth  just  $400  under 
this  decision,  repeated  the  offence,  which  was  in  saying  that  Cooper  was  despised, 
and  professed  himself  ready  to  respond  in  another  suit  for  $400  more.  It  was 
immediately  entered,  and  Mr.  Weed  continuing  to  bluff  his  adversary  in  his 
paper,  suits  were  multiplied  until  they  reached  seven  in  number.  Cooper  won 
one  after  another  of  them  also.  Though  the  amount  of  damages  was  not  always 
large,  the  expense  of  defending  them  was  considerable,  they  all  carried  heavy 
costs  of  court  against  the  defendant,  and  the  annoyance  they  occasioned  became 
unbearable.  Mr.  Weed  was  brought  to  cry  '  enough,'  to  retract  all  he  had  said, 
and  withdraw  every  charge  made.  .  .  .Mr.  Weed  had  written  an  account  of  the 
first  trial  in  the  suit  of  Mr.  Cooper  against  him  for  the  New  York  Tribune,  of 
course  1  olon  d  to  suit  himself.  For  this  Cooper  sued  Horace  Greeley  as  editor. 
Mr.  Greeley  com  hided  to  meet  Mr.  Cooper  in  court  himself.  It  was  the  editor 
against  the  novelist  at  the  bar,  Mr.  Greeley  defending  his  own  case.  But  he  was 
no  match  for  his  antagonist,  and  he  lost  it.     He  published  an  account  of  the 


LANGUAGE  WHICH   IS   LIBELLOUS.  159 

$300  in  a  suit  based  on  a  libel  published  by  Stone  in 
the  New  York  Commercial  Advertiser.1  Colonel  Stone 
then  published  in  the  New  York  spectator,  of  which  he 
had  become  editor,  the  following  (July  6,  1842)  regard- 
ing the  award  :  — 

Mr.  J.  Fenimore  Cooper  need  not  be  so  fidgety  in  his 
anxiety  to  finger  the  cash  to  be  paid  by  us  towards  his  sup- 
port. It  will  be  forthcoming  on  the  last  day  allowed  by  the 
award,  but  we  are  not  disposed  to  allow  him  to  put  it  into 
Wall  Street  for  shaving  purposes  before  that  period.  Wait 
patiently.  I  here  will  be  no  blacksmith  necessary  to  get  at 
the  ready. 

For  this  latter  publication  the  novelist  began  a  new 
action,  and  recovered  a  verdict  for  $250.  The  Court 
of  Errors,  however,  reversed  the  judgment,  holding 
that  the  Court  could  not  legally  presume  that  a  charge 
of  putting  money  into  Wall  Street  "  for  shaving  pur- 
poses"  would  degrade  any  one,  or  cause  him  to  suffer 
loss.2 

A  similar  result  was  reached  in  a  case  where  the  elder 
Bennett  was  the  plaintiff.  Mr.  Bennett  was  a  defend- 
ant in  many  libel  suits,  including  some  of  the  most 
interesting  and  important  ever  tried  in  this  country,  but 
he  rarely  brought  suit  for  libels  upon  himself.  In  1848, 
however,  he  was  provoked  by  a  publication  in  the  New 
York  Sunday  Dispatch  to  the  point  of  bringing  an  action. 
John  Tryon  established  the  Sunday  Coutier  in  New 
York,  in   1834.     It  was  one  of  the  first  Sunday  papers 

trial  in  the  Tribune,  which  Mr.  Cooper  did  not  like,  and  he  sued  Mr.  Greeley 
again.  Mr.  Greeley  this  time  gave  the  case  into  the  hands  of  William  H. 
Seward,  to  act  as  his  counsel.  It  was  never  tried,  Mr.  Cooper  dying  before  it 
could  be  reached."  —  Boston  Herald,  April  17,  1887. 

1  See  this  case  cited  at  length,  post,  p.  200. 

2  2  Denio,  293. 


!6o  NEWSPAPER    LffcEL. 

published  in  the  metropolis,  and  was  not  remarkably 
successful.  In  an  article  in  the  Sunday  Dispatch  on 
this  venture,  Amor  J.  Williamson,  the  editor,  stated 
that  Mr.  Bennett  purchased  the  Courier  of  Mr.  Tryon, 
giving  his  note  for  a  portion  of  the  purchase  money, 
but  that  Bennett  "  not  having  the  ability  to  make  a 
Sunday  paper  go,  it  died  off."     The  article  continued  :  — 

When  the  note  became  due,  Bennett  could  not  pay,  and 
begged  the  holder  of  the  note  to  wait.  The  man  did  wait, 
and,  some  years  after,  Bennett  having  got  on,  the  note  was 
sued,  but  Bennett  pleaded  the  statute  of  limitations,  and  got 
off  scot-free. 

The  Court  held  that,  there  being  no  charge  of  dis- 
honesty, the  publication  was  not  libellous.1  In  other 
words,  it  is  not  actionable  to  charge  one  with  taking 
advantage  of  the  statute  of  limitations. 

Mr.  Bennett  assigned  a  different  cause  for  the  sus- 
pension of  the  Sunday  Courier:  "The  project  was 
rather  premature,  and  we  declined  prosecuting  it,  in 
order  to  engage  in  other  avocations."  2  As  an  illustra- 
tion of  Mr.  Bennett's  indifference  to  personal  defa- 
mation, the  following  partial  list  of  epithets  directed 
against  him  by  Park  Benjamin  in  the  New  York  Signal, 
without  provoking  a  libel  suit,  may  be  given  :  "  Obscene 
vagabond,"  "infamous  blasphemer,"  "loathsome  and 
leprous  slanderer  and  libeller,"  "  profligate  adventurer," 
"nuisance,"  "venomous  reptile,"  "pestilential  scoun- 
drel," "habitual  scoffer,"  "venal  wretch,"  "daring  infi- 
del," "infamous  Scotchman,"  "foreign  vagabond," 
"polluted  wretch,"  "habitual  liar,"  "prince  of  dark- 
ness,"  "veteran  blackguard,"  "contemptible  libeller," 

1  Bennett  v.  Williamson  tt  "/■,  4  Sandford,  60. 
-  New  York  Herald,  July  29,  1844. 


LANGUAGE   WHICH   IS   LIBELLOUS.  161 

"caitiff,"  "monster,"  "ass,"  "rogue."  This  abuse 
'was  published  during  a  "moral  war"  which  was  waged 
against  the  Herald  by  the  other  New  York  newspapers 
in  1840. 1 

To  call  a  lawyer  a  "  shyster  "  is  per  se  libellous,2  and 
it  is  also  libellous  per  se  to  charge  that  a  county  attorney 
had  failed,  "purely  out  of  political  fear,"  to  prosecute 
a  person  suspected  of  having  committed  a  crime.3     But 
it  is  not  libellous  per  se   to   call  a  lawyer  a  "crank." 
Late  in   1S86,  Albert  H.  Walker,  a  Hartford,  Conn., 
lawyer,  published  a  pamphlet  on  "The  Payne  Bribery 
Case  and  the  United  States  Senate."     In  an  editorial 
paragraph  the  Chicago  Tribune  characterized  the  work 
as  "plainly  the  effusion  of  a  crank,"  and  Mr.  Walker 
brought  suit  for  $20,000  damages.     The  Tribune  Com- 
pany demurred  to  his  declaration,  and  Judge  Blodgctt, 
of  the  United  States  District  Court,  sustained  the  de- 
murrer.    The  Court  held  that  the  word  "  crank  "  is  not 
per  se  libellous,  and  that  in  the   absence  of   proof  of 
special  damage  the  action  could  not  be  sustained.     "  It 
was  not  a  word  which,  by  its  common  meaning  in  the 
English    language,   imported   that  a   person    had  been 
guilty  of  a  crime,  or  exposed  him  to  hatred,  contempt, 
ridicule  or  obloquy.  ...  It  was  urged  in  a  brief  filed 
by  plaintiff,  that  since  the  assassination  of    President 
Garfield  by  Guiteau,  the  word  'crank'  had  obtained  a 
definite  meaning  in  this  country,  and  was  understood  to 
mean  a  crack-brained  and  murderously-inclined  person, 
and  was  so  used  by  the  public  press.     Judge  Blodgett 

1  Hudson's  Journalism  in  the  United  States,  p.  459. 

2  Edwin  Gribble  v.  Pioneer  Press  Co.,  34  Minn.  (1885),  342.     A  verdict  for 
$1,000  was  sustained. 

3  Frank  D.  Larrabee  v.  Minnesota  Tribune  Co.  f  Minneapolis  Daily  Tribune, 
May  26,  1883),  36  Minn.  141.     The  plaintiff  recovered  $1,250. 


1 62  NEWSPAPER    LIBEL. 

said  he  did  not  think  so  short  a  term  of  use  would  give 
to  such  a  word  a  libellous  sense  or  meaning  without  an 
allegation  or  innuendo  as  to  the  sense  in  which  it  was 
used  by  the  defendant."  l 

The  Daily  Nebraska  Press,  published  in  Nebraska 
City,  contained  this  news  article,  July  12,  1873:  — 

An  Inhuman  Step-Mother.  —  She  beats  her  child  over 
the  head  with  a  club.  ...  — ...  Last  night  Mrs.  Geisler 
beat  her  little  step-daughter  most  unmercifully  with  a  club 
as  large  as  a  man's  wrist,  striking  her  over  the  head  and 
making  the  blood  flow  freely.  ...  It  is  time  that  Geisler 
and  his  brutal  wife  were  put  under  bonds  not  to  whip  that 
girl,  and  it  is  time  some  one  took  care  of  the  little  girl,  who 
is  not  over  nine  years  of  age.  .  .  . 

Mrs.  Geisler  brought  suit  for  damages,  but  the  Court 
held  on  demurrer  that  the  words  were  not  actionable 
per  se,  and  that,  as  no  special  damage  was  alleged,  the 
plaintiff  could  not  recover.2 

The  late  New  York  Truth,  one  day  in  March,  188 1, 
published  the  following  regarding  a  certain  "  Philis- 
tine "  named  Charles  W.  Fuller  :  — 

And  it  came  to  pass  that  as  the  man  watched,  he  did 
behold  Jeanne  go  forth  with  the  Philistine  into  a  strange 
tent  which  standeth  in  the  way,  the  same  which  is  called 
Thirty-seventh  Street,  and  they  did  remain  there  together  a 
long  time,  and  Solomon's  soul  was  filled  with  woe  and  his 
head  bent  down  with  grief  as  he  cried  out  that  Jeanne  and 
the  Philistine  had  committed  an  abomination  in  the  sight  of 
the  Lord. 

Judge    Cowing,    in   rendering    the    opinion    of    the 

1  Chicago  News,  Feb.  15,  1887;  29  Federal  Reporter,  827. 

2  Clara  Geisler  v.  William  A.  Brown,  6  Neb.  254.  Mr.  Bigelow,  in  his  notes 
upon  Odgers  on  Libel  and  Slander  (p.  25J,  calls  the  ruling  of  the  Court  in  this 
case  "  a  shocking  doctrine." 


LANGUAGE   WHICH    TS   LIBELLOUS.  ^3 

Court,  held  that  the  language  was  not  libellous  per  se, 
in  the  absence  of  an  innuendo  showing  what  was  meant 
by  the  word  "abomination."  He  quoted  the  diction- 
aries as  defining  an  abomination  as  "  anything  wicked." 
and  said:  "They  may  have  sat  down  and,  with  great 
relish,  eaten  a  savory  pork  tenderloin,  which  would  be 
considered  by  some  to  be  '  an  abomination  in  the  sight 
of  the  Lord,'  but  I  apprehend  that  no  one  would  con- 
sider such  a  charge  to  be  a  criminal  libel  as  against  the 
complainant."1  A  deifturrer  to  the  indictment  was 
sustained. 

A  long  article  was  published  in  the  Rochester  Demo- 
crat and  Chronicle,  of  which  the  following  is  an  ex- 
tract :  — 

A  Narrow  Escape  from  Being  Buried  Alive. — A 
well-to-do  farmer  found  stiff  and  cold  by  the  roadside.  — 
He  is  supposed  to  have  been  frozen  to  death.  —  A  cor- 
oner takes  charge  of  the  case  and  impanels  a  jury.  —  The 
inquest  interrupted  by  a  physician,  who  declares  the  man 
to  be  alive. — Animation  restored.  —  .  .  .  Mr.  Haminell 
can  thank  Dr.  Lester  for  the  fact  that  the  coroner's  jury  did 
not  return  a  verdict  that  he  came  to  his  death  from  expos- 
ure ;  that  he  was  not  placed  in  a  coffin  and  buried  alive,  and 
that  his  family  and  friends  were  not  called  upon  to  mourn 
his  unfortunate  death. 

Hiram  J.  Purdy,  the  coroner  referred  to,  brought  suit 
for  libel,  but  the  Court  of  Appeals  held  that  Uie  article 
was  not  susceptible  of  an  actionable  construction,  as  it 
only  referred  to  the  plaintiff  in  his  official  capacity,  and 
showed  him  to  be  vigilant  in  the  performance  of  the 
duties  of  his  office.2  • 

Speaking  of  a  banquet  of  the  Ancient  and  Honorable 

1  People  v.  Isaacs,  i  N.  Y.  Criminal  Reports,  148. 

-  Purdy  v.  The  Rochester  Printing  Co.,  96  N.  Y.  (1884),  372. 


x64  NEWSPAPER    LIBEL. 

Artillery  Company  in  Faneuil   Hall,  the  Boston  Budget 
said  :  — 

A  wretched  dinner  was  served,  and  in  such  a  way  that 
even  hungry  barbarians  might  justly  object.  The  cigars 
were  simply  vile,  and  the  wines  not  much  better. 

In  a  suit  brought  by  the  caterer,  it  was  held  by  the 
Supreme  Judicial  Court  that  the  language  was  not 
actionable  per  se,  for  it  did  not  appear  that  the  caterer 
violated  any  agreement,  or  charged  more  than  the 
dinner  was  worth.1 

Language  may  be  libellous  which  is  not  defamatory 
of  a  person,  but  which  impairs  the  value  of  his  property. 
This  is  called  "  slander  of  title."  To  render  such  lan- 
guage actionable,  it  must  be  published  without  lawful 
excuse,  and  pecuniary  loss  must  be  a  natural  and  proxi- 
mate consequence  of  its  publication.  The  burden  of 
proof  rests  upon  the  plaintiff  to  show  that  he  has 
suffered  such  loss,  and  that  the  publication  was  false. 
The  New  York  World  published  an  illustrated  article,  de- 
scribing various  saloons  at  Coney  Island  as  exerting  a 
bad  influence.  One  of  the  cuts  represented  the  interior 
of  a  saloon,  and  was  entitled  "  In  Kennedy's."  Joseph 
Kennedy  brought  suit  for  damages,  but  the  Supreme 
Court  held  that  the  article  did  not  charge  him  with  con- 
ducting his  saloon  improperly,  but  only  with  keeping 
•one  of  a  number  of  saloons  which  were  a  resort  of  im- 
proper characters.  It  was  accordingly  a  libel  on  the 
place  and  not  on  the  person,  and  was  not  actionable  in 
the  absence  of  express  proof  that  the  owner  had  suf- 
fered pecuniary  loss  as  a  natural  consequence  of  the 
publication.2 

1  James  Dooling  v.  Budget  Pub.  Co.,  144  Mass.  (1887),  258. 

2  Kennedy  7'.  Press  Pub.  Co.,  41  Hun  (N.  Y.  Supreme  Court,  18S6),  422.    See 


LANGUAGE   WHICH   IS   LIBELLOUS  165 

In  an  old  English  case  the  cause  of  action  was  the 
followirg,  published  in  a  newspaper  called  the  Oracle :  — 

Times  versus  True  Britox.  —  In  a  morning  paper  of 
yesterday  was  given  the  following  character  of  the  True 
Briton,— that  "it  was  the  most  vulgar,  ignorant,  and  scurril- 
ous journal  ever  published  in  Great  Britain/'  To  the  above 
assertion  we  assent,  and  to  this  account  we  add,  that  the 
first  proprietors  abandoned  it,  and  that  it  is  the  lowest  now 
in  circulation  ;  and  we  submit  the  fact  to  the  consideration 
of  advertisers. 

Lord  Chief  Justice  Kenyon  held  that  no  action  was 
maintainable  for  the  assertion  that  the  1 rue  Briton  was 
"  the  most  vulgar,  ignorant,  and  scurrilous  journal  ever 
published  in  Great  Britain,"  but  that  the  subsequent 
words,  alleging  that  it  was  the  lowest  paper  in  point  of 
circulation,  were  actionable,  since  they  tended  to  affect 
the  profits  to  be  made  from  its  publication.1 

While  it  is  libellous  falsely  to  underrate  the  circula- 
tion of  a  particular  newspaper,  it  is  not  actionable  to 
claim  in  general  terms  that  "  this  paper  has  the  largest 
circulation  in  the  United  States,"  although  the  proprie- 
tors of  another  newspaper  may  be  able  to  show  that 
their  paper  has  a  larger  circulation  than  the  one  mak- 
ing the  claim. 

The  San  Francisco  Chronicle,  November  30,  1876, 
charged  the  publisher  of  the  Call  and  Bulletin  of  that 
city  with  selling  their  editorial  influence  to  the  Central 
Pacific  Railroad  Company,  and  the  result  was  a  libel 
suit.  The  defendants  pleaded  that  the  publication  was 
not  libellous,  as  the  opinions  of  a  newspaper  were 
properly  merchantable  ;  and  they  were  sustained  by  the 

also  M.  D.  Wilson ■v.Q..  H.  Dubois  (Minneapolis  Saturday  Evening  Spectator), 
35  Minn.  (1886),  471. 

1  Heriot  7'.  Stuart,  1  'Espinasse's  Cases  (1796)  ,437. 

8* 


j  66  NEWSPAPER   LIBEL. 

I 

Superior  Court.    The  Supreme  Court,  however,  in  Jan- 
uary, 1885,  reversed  the  ruling  of  the  court  below,  hold- 
ing that  the  charge  was  libellous.     Judge  Myrick,  who 
read   the  opinion  of   the  Court,  said  :    "  If  readers   of 
newspapers  are  at  all  honest  in  their  own  sentiments, 
proprietors  of   newspapers   owe   to  them    the    duty  of 
being  sincere.      It  would  not  be   sincere   to    do    that 
which    is    charged  in   the  article   set  out  in  the  com- 
plaint.    The  tendency  of  the  course  charged  would  be 
to  lessen  the  confidence  of  readers,  and  thus  to  dimin- 
ish their  number  or  change  them  as  to   character  ;  in 
either  event  it  might  expose  the  proprietors  to  loss."  1 
Language  especially  affecting  one  in  his  office,  pro- 
fession, or  trade,  provided  the  employment  is  a  lawful 
one,  and  provided  it  is  one  which  yields,  or  may  yield, 
pecuniary  benefit,  may  be   actionable  where   the   same 
language  would  not  be  actionable  in  the  case  of  any 
other  person.     Thus  it  would  be  libellous  to  publish  of 
a  physician  that  he  did  not  know  the  difference  between 
a  case  of  scarlet  fever  and  a  case  of  surgical  instru- 
ments, while  the  same  words  might  be  used  with  im- 
punity regarding  a  shoemaker.     Where  dishonesty  or 
incapacity  is  falsely  imputed   to   one   in  his  trade   or 
calling,  an  action  can  be  maintained  without  proof  of 
actual  malice  or  special  damage,  unless  the  defamatory 
article  is  protected  by  the   law  of  privileged  publica- 
tions;2 but  privilege  is  no  defence  where  the  publication 
is  malicious  and  false.     A  corporation  or  partnership, 

1  George  K..  Fitch  v.  Michel  H.  DeVoung  et  al.,  66  Cal.  (1885),  339.  The 
case  subsequently  went  before  a  jury  and  resulted  in  a  verdict  for  one  dollar  in 
favor  of  the  plaintiff,  after  a  trial  lasting  a  month.  (See  the  San  Francisco 
Morning  Call,  April  21  to  May  21,  1887.  The  report  of  the  case  from  day  to 
day  in  the  Call  filled  more  than  one  hundred  columns.) 

2  See  Chap.  VII. 


LANGUAGE   WHICH   IS   LIBELLOUS.  167 

charged  with  dishonesty  or  incapacity,  stands  upon  the 
same  footing  as  an  individual. 

In  an  article  on  the  noted  "Chisholm  massacre," 
published  in  the  Vicksburg  Herald  in  May,  1877, 
under  the  heading,  "  Rash  Southerners  and  Philan- 
thropic Northerners,"  the  writer  said  :  — 

The  accident  of  Miss  Chisholm's  death,  caused  by  mal- 
practice, and  not  by  her  slight  wound,  adds  tenfold  to  the 
deplorable  consequences. 

Dr.  John  D.  Kline,  who  attended  Miss  Chisholm, 
brought  suit  against  George  W.  Rodgers  et  al.,  of  the 
Herald,  for  libel,  but  the  Supreme  Court  was  of  opinion 
that  words  regarding  one  in  his  profession  are  not 
actionable  where  they  charge  him  with  want  of  skill  or 
neglect  in  a  particular  transaction,  unless  the  charge 
be  of  such  gross  want  of  skill  as  to  imply  general  un- 
fitness for  his  calling.  The  Court  refused  to  interpret 
the  word  "malpractice"  in  its  technical  sense  of  pro- 
fessional misconduct,  and  a  verdict  for  $500  in  favor  of 
the  doctor  was  set  aside.1 

A  case  in  Wisconsin,  in  which  a  decision  was  ren- 
dered by  the  Supreme  Court  in  March,  1885,  sustains 
the  same  doctrine.  The  cause  of  action  was  an  article 
headed  "A  Serious  Case,"  in  which  statements  were 
made  which,  if  true,  would  show  that  the  plaintiff,  Dr. 
E.  T  Gauvreau,  had  failed  to  discover  the  presence  of 
diphtheria  in  a  case  under  his  care  until  long  after  he 
should  have  done  so.     The  article  continued  :  — 

We  think  it  high  time  that  the  community  should  under- 
stand the  facts  in  the  case,  .  .  .  and  should  suffer  no  more 
either  by  the  ignorance  or  negligence  of  any  of  its  physi- 
cians.    Inability  to  make  a  diagnosis  should  not  be  a  suffi- 

1  Kline  v.  Rodgers  et  al.,  56  Miss.  808. 


x68  NEWSPAPER   LIBEL. 

cient  excuse,  for  the  responsibilities  of  assumed  knowledge 
cannot  be  avoided  by  a  plea  of  ignorance. 

The  Court  held  that  where  the  words  are  such  as 
fairly  to  impute  gross  ignorance  and  unskilfulness  they 
are  libellous  ;  whereas,  if  they  only  impute  such  want 
of  skill  as  is  compatible  with  the  ordinary  or  general 
knowledge  and  skill  in  the  same  profession,  they  are 
not  actionable  per  se.  The  Court  considered  that  the 
article  in  question  imputed  gross  ignorance  and  unskil- 
fulness, and  it  was  held  to  be  per  se  libellous.1 

A  publication  regarding  an  individual  in  respect  of 
an  unlawful  business  in  which  he  is  engaged  is  not 
libellous.  The  Supreme  Court  of  California  affirmed 
this  well-established  doctrine  in  the  case  of  Eben  John- 
son v.  the  San  Francisco  Daily  Evening  Bulletin,  where 
the  alleged  libel  had  reference  to  the  "swill  milk" 
business,  and  was  in  the  following  language  :  — 

A  week  ago  Officer  Stone  was  detailed  by  Chief  Burke  to 
watch  the  Black  Point  milk  ranches.  He  found  on  E.  John- 
son's ranch  about  one  hundred  and  twenty  cows  feeding 
on  a  thin,  sour  slop,  coming  by  flumes  from  the  distillery 
tank.  ...  In  a  few  days,  therefore,  we  shall  see  whether 
a  practice  that  is  as  deadly  as  the  assassin's  steel  or  lead 
to  the  infants  who  suffer  from  it  can  be  carried  on  with 
impunity.  .  .   . 

Judgment  for  the  defendants  was  affirmed2 

Language  which  is  ironical  has  sometimes  been  held 
to  be  libellous.  The  following  was  published  in  an 
English  newspaper  :  — 

An  Honest  Lawyer.  —  A  person  of  the  name  of  Charles 
Boydell,  an  attorney  in  Devonshire  Street,  Queen  Square, 

1  Gauvreau  v.  Superior  Publishing  Company,  62  Wis.  403. 
Johnson  v.  J.  W.  Simonton  et  al.,  43  Cal.  (1872),  242. 


LANGUAGE   WHICH    IS   LIBELLOUS.  ^g 

was  severely  reprimanded  by  one  of  the  Masters  of  the 
Queen's  Bench  the  other  day  for  what  is  called  sharp  prac- 
tice in  his  profession. 

The  Court  held  that  the  heading,  "  An  Honest  Law- 
yer," which  the  plaintiff  claimed  to  be  ironical,  was 
libellous  x  And  in  a  case  in  New  York,  where  the 
defendant  maintained  that  the  libel  was  a  satirical  reply 
to  an  article  published  by  the  plaintiff  in  the  course  of 
a  newspaper  controversy,  the  defence  was  held  to  be 
bad.  The  libel  in  question  was  published  in  the 
Canandaigua  Ontario  Messenger,  and  was  as  follows  :  — 

It  is  with  unfeigned  grief  we  inform  our  readers  that 
Southwick,  the  late  editor  of  the  Albany  Register,  has 
become  insane  ;  the  progress  of  his  malady  has  been  ob- 
served for  some  time  past,  and  at  length,  much  to  the  regret 
of  his  friends  and  his  adversaries,  it  has  resulted  in  a  con- 
firmed lunacy.  The  friends  of  the  unfortunate,  we  under- 
stand, have  confined  him  to  his  former  editorial  closet,  and 
have  consigned  the  management  of  his  paper  to  a  needy 
Irishman  who  wears  straw  in  his  shoes.  Although  this 
deplorable  event  has  been  expected  by  many  for  some  time, 
yet  decisive  evidence  of  the  disease  having  arrived  at  its 
last  stage  did  not  exist  till  the  24th  inst.,  when  the  Albany 
Register  exhibited  such  unequivocal  proofs  of  the  insanity 
of  its  editor  that  the  friends  and  creditors  of  the  establish- 
ment, we  are  told,  shut  up  the  poor  maniac,  put  him  into  a 
strait-jacket,  shaved  his  head,  and  confined  him  to  bread 
and  water. 

Mr.  Southwick  was  the  State  printer  of  New  York, 
and  the  president  of  a  bank.  He  claimed  that  the 
article,  although  ironical,  exposed  him  to  ridicule,  and 
was  awarded  a  verdict  for  $640,  which  verdict  was 
sustained  2 

1  Boydell  v.  Jones,  4  Meeson  &  Welsby  (1838),  446. 

2  Southwick  v.  Stevens,  10  Johnson  (1813),  443. 


170 


NEWSPAPER   LIBEL. 


It  is  libellous  to  credit  an  article  containing  treason- 
able sentiments  to  a  newspaper  which  had  not  published 
it.  The  Albany  Register  copied  such  an  article  from 
the  New  York  Public  Advertiser,  but  by  mistake  cred- 
ited it  to  the  New  York  Evening  Post.  The  fact  that 
the  wrongful  credit  was  given  by  mistake  was  held  to 
be  no  defence,  and  a  verdict  for  $1,500  in  favor  of  the 
editor  of  the  Evening  Post  was  sustained.1 

An  imputation  in  the  form  of  a  question  may  be 
actionable.  The  following  language,  copied  into  the 
Oswego  County  Whig  from  the  Chicago  American,  was 
held  to  be  libellous  :  — 2 

Is  Miles  Hotchkiss,  Esq.,  .  .  .  the  individual  who  broke 
jail  at' Albany  in  the  State  of  New  York,  while  confined  there 
on  a  charge  of  forgery?  Does  he  now  keep  a  ball  alley  and 
a  loafer  grocery  at  Oswego  ? 

Where  a  libel  is  a  result  of  the  bad  penmanship  of 
the  plaintiff  himself,  it  is  not  actionable.  Andrew  J. 
Shakespeare,  of  the  Kalamazoo  Gazette,  was  sued  by 
Dr.  Hervey  Sullings  for  the  publication  of  a  statement 
that  Dr.  Sullings  had  removed  a  "  patty  tuber"  from 
the  " hypogastrium  "of  a  patient.  Dr.  Sullings  claimed 
that  the  publication  tended  to  bring  him  into  ridicule 
and  contempt;  but  Mr.  Shakespeare  asserted  in  de- 
fence that  the  error  was  caused  by  the  illegibility  of  the 
doctor's  own  handwriting,  and  the  Court  held  that  the 
action  could  not  be  maintained.3 

Often  the  heading  given  to  a  report  by  a  news  editor 
is  of  a  libellous  character,  where  the  report  itself  is 
either  privileged  or  not  defamatory.     Recently  in  Flor- 

'  Coleman  v.  Southwick,  9  Johnson  (N.  Y.  Supreme  Court,  1812),  45. 

2  Hotchkiss  v.  Oliphant,  2  Hill  (N.  Y.  1842),  510. 

3  Sullings  v.  Shakespeare,  46  Mich.  (1881),  408. 


LANGUAGE    WHICH    IS    LIBELLOUS. 


171 


ida,  the  publishers  of  the  Jacksonville  News-Herald 
suffered  an  adverse   verdict  for   $10,000  at   the  suit  of 

E.  H.  Lewis,  in  the  United  States  Circuit  Court,  for 
the  publication  of  articles  regarding  the  death  of  Hattie 

F.  Lewis.  Foul  play  on  the  part  of  certain  members 
of  the  dead  girl's  family  was  suspected.  "  The  basis 
for  these  libel  suits  was  found  in  the  head-lines  of  the 
articles,  which  very  naturally  were  made  up  of  stronger 
terms,  and  were  constructed  in  order  to  catch  the  eye 
of  the  reader."  1  A  report  of  proceedings  in  a  court 
was  headed  "  Shameful  Conduct  of  an  Attorney."  It 
was  held  that  the  report  was  privileged ;  but  that  the 
heading,  not  being  a  part  of  the  proceedings,  was  not 
privileged  and  was  actionable.2  And  in  a  case  in  Min- 
nesota, the  Court  remarked:  "  Even  if  every  fact  stated 
in  the  body  of  the  publication  should  be  established  as 
indisputably  true,  this  might  not  amount  to  a  justifica- 
tion, unless  the  defendant  also  justified  the  prefix  or 
heading,  '  culpable  neglect '  ;  for  all  the  facts  stated  in 
the  body  of  the  article  might  be  true,  and  yet  not  con- 
stitute culpable  neglect  on  the  part  of  the  plaintiff."  3 

In  the  Colchester,  Eng.,  Gazette,  August  23,  1828,  was 
published  a  laughable  story  concerning  one  A.  Cook,  in 
which  it  was  related  that  Mr.  Cook  had  been  mistaken 
for  Jack  Ketch,  the  hangman.  Mr.  Cook  sued  E.  J. 
Ward,  editor  of  the  Gazette,  for  libel,  and  the  latter 
defended  on  the  ground  that  the  story  was  one  which 
the  plaintiff  had  told  of  himself  a  few  days  before. 
The  Court  held  that  the  publication  was  libellous,  inas- 

1  Jacksonville  Nevus-Herald,  April  n,  1888.  Suits  against  a  number  of 
Boston  papers  for  the  publication  of  the  same  articles  are  now  pending. 

2  Lewis  v.  Clement  {Observer) ,  3  Barnewall  &  Alderson's  Reports  (Eng. 
King's  Bench,  1820),  702. 

3  Daniel   L.  Pratt  v.  St.  Paul  Pioneer  Press  Co.,  30  Minn.  (1882),  41. 


l]2  NEWSPAPER   LIBEL. 

much  as  it  tended  to  make  the  plaintiff  an  object  of 
ridicule,  and  that  it  was  no  defence  that  the  plaintiff 
had  previously  told  the  same  story  to  a  party  of  friends. 
A  verdict  for  the  plaintiff  for  ^io  was  sustained.1 

It  is  libellous  maliciously  to  publish  an  obituary 
notice  of  a  living  person.2  It  is  libellous  accidentally 
to  publish  the  name  of  a  solvent  firm  in  a  list  of  insol- 
vent business  houses.3  A  newspaper  writer  has  a  right 
to  publish  the  fact  that  a  person  has  been  arrested,  and 
to  state  the  charge  upon  which  his  arrest  is  based,  but 
he  has  no  right  to  assume  the  guilt  of  the  prisoner.4 

It  is  mildly  libellous  to  call  a  newspaper  reporter 
"  Deputy  Grand  Ink  Slinger  'Arry  Kerrison,"  and  for 
so  doing  in  the  Boston  Evening  Record,  April  13,  1886, 
the  Advertiser  Publisher  Company  was  compelled  to 
pay  a  verdict  of  one  dollar.5  For  the  same  amount  the 
Daily  Arkansas  Gazette  called  a  supervisor  of  internal 
revenue  a  "self-convicted  liar"  and  a  "stupid  ass,"  and 
stated  that  he  was  "  in  the  pay  of  the  St.  Louis  tobacco 
manufacturers."6  A  fine  of  the  same  amount  was  im- 
posed upon  Robert  B.  Crossman  of  the  Clayton,  Mo., 
Star  Republican,  upon  conviction  for  publishing  this 
sentence  :  "  The  ring's  organ  is  not  satisfied  with  rob- 
bing by  and  with  the  consent  of  the  county  clerk."7 

Whether  language  is  libellous  or  not  is  in  criminal 

1  Cook  v.  Ward,  6  Bingham,  409. 

2  McBride  et  2ix.  v.  Ellis  (Charleston  Mercury),  cited  ante,  p.  144. 

3  For  such  a  mistake,  the  editor  of  the  New  York  Herald  was  convicted  of 
criminal  libel  in  1837,  and  fined  $500.  (Hudson's  Journalism  in  the  United 
States,  p   753.)     See  ante,  p.  145. 

4 Usher  v.  Severance  {Kennebec  Journal),  20  Maine,  9.  (See  Chap.  VII. 
on  Privileged  Publications.) 

5  Boston  Journal,  May  7,  1887. 

'■McDonald  v.  Woodruff  el  al.,  2  Dillon  (U.  S.  Circuit  Court,  1871),  244. 

7  The  State  v.  Crossman,  15  Mo.  Appeal  Reports  (1884),  585. 


LANGUAGE   WHICH    IS    LIBELLOUS. 


'73 


cases  a  question  for  the  jury  alone  to  decide,  but  in 
civil  cases  the  practice  varies  in  different  States.  In 
Massachusetts  and  some  other  States,  the  English  prac- 
tice is  followed  in  civil  cases,  the  Court  defining  the  term 
"libel,"  and  leaving  the  question  to  the  jury  whether 
the  language  comes  within  the  definition.  In  New 
York,  Pennsylvania,  Indiana,  and  some  other  States,  on 
the  other  hand,  the  Court  decides,  when  the  words  are 
free  from  ambiguity,  whether  they  are  libellous,  and 
instructs  the  jury  accordingly.1 

In  conclusion,  the  following  extracts  from  newspaper 
articles  may  be  quoted,  all  of  which  have  been  held  to 
be  libellous  :  — 

This  great  king,  in  whose  veins  courses  the  blood  of  the 
ancient  viking,  has  turned  into  an  enormous  swine,  which 
lives  on  lame  horses.  —  [Peterson  v.  Solverson  (Oconomowoc 
Local),  64  Wis.  (1885),  198. 

He  openly  avowed  the  opinion  that  government  had  no 
more  right  to  provide  by  law  for  the  support  of  the  worship 
of  the  Supreme  Being,  than  for  the  support  of  the  worship 
of  the  devil.  —  [Stow  v.  Converse  {Connecticut  Journal),  3 
Conn.  (1820),  325. 

Mr.  Cooper  will  have  to  bring  his  action  to  trial  some- 
where. He  will  not  like  to  bring  it  in  New  York,  for  we  are 
known  here,  nor  in  Otsego,  for  he  is' known  there.  — [J.  Feni- 
more  Cooper  v.  Horace  Greeley  et  al.  (New  York  Tribune), 
I  Denio  (N.  Y.  1845),  347. 

The  transaction  alluded  to  was  the  appointment  of  an 
inspector  of  pork  by  Governor  Seward,  for  which  appoint- 
ment Thurlow  Weed  received  $5,000  in  cash.  A  fair  busi- 
ness transaction  !  —  [Weed  v.  Foster  et  al.  {Day  Book).  \  1 
Barbour  (N.  Y.  1851),  203. 

'Odgers  on  Libel  and  Slander,  p.  94,  note. 


174 


NEWSPAPER   LIBEL. 


The  Hurricane  Vote.  —  Again  we  have  to  chronicle 
most  atrocious  corruption,  intimidation,  and  fraud  in  the 
Hurricane  Island  vote,  for  which  Davis  Tillson  is  without 
doubt  responsible,  as  he  was  last  year.  —  [Tillson  v.  Levi 
M.  Robbins  (Rockland,  Me.,  Opinion,  Sept.  15,  1876),  68 
Me.  295. 

Mr.  Shattuc  [general  passenger  agent  of  the  Ohio  and 
Mississippi  railroad]  has  grown  rich  by  making  his  local 
ticket  agents,  or  some  of  them,  divide  their  commissions 
with  him.  —  [W.  B.  Shattuc  v.  Daniel  McArthur  et  al. 
{Railway  Register,  May  16,  1885),  25  Federal  Reporter 
(Mo.),  133  ;  29  do.  136. 

He  is  as  versatile  as  the  famous  Monroe  Edwards  [a 
notorious  forger]  in  circumventing  the  law  of  right;  but  the 
Sentinel,  in  its  better  and  more  honorable  days,  would  not 
have  consented  to  be  the  tool  of  a  person  of  so  desperate  a 
character.  —  [Josiah  A.  Noonan  v.  William  E.  Cramer  (Mil- 
waukee Daily  Wisconsin,  Nov.  11,  1853),  4  Wis.  231. 

It  is  said  that  the  French  government  have  a  spy  in  every 
nation  on  earth.  ...  If  this  be  the  case,  who  is  the  spy? 
.  .  .  The  county  of  Rensselaer,  I  am  told,  does  harbor  such 
a  one,  who  .  .  .  traitorously  betrayed  the  secrets  of  his 
own  government.  —  [Verdict  for  $200  sustained.  —  Genet  v. 
Mitchell  {Republican  Crisis,  March  26,  1807),  7  Johnson 
(N.  Y.),  120. 

Early  this  week  he  started  between  two  days  for  the  city, 
with  McCollum's  cattle.  Soon  an  officer  was  put  on  the 
trail ;  said  trail  grew  exceedingly  hot  along  here,  and  the 
cattle  and  Myrick  were  all  overtaken  and  captured  near 
Riley  McCrary's.  Such  is  the  unadorned  tale  as  it  reached 
our  reporter's  ears.  —  [Myrick  v.  Bain  (Martinsville  Repub- 
lican, March  17,  1881),  88  Ind.  137. 

The  people  who,  under  the  guise  of  assumed  respecta- 
bility, resort  to  low  commercial  jugglery  to  foist  a  valueless, 
not  to  say  dangerous,  article  upon  unsuspecting  manufac- 


LANGUAGE   WHICH   IS   LIBELLOUS.  I75 

turers  and  jobbers,  and  thereby  probably  cause  their  ruin, 
are  no  better  than  the  "  stool  pigeons  "  of  a  low  Chatham 
Street  dive. — [Judgment  for  $3,306.88  (damages  and  costs) 
affirmed.  —  Isaac  Rosenwald  v.  Oscar  Hammerstein  (U.  S. 
Tobacco  Journal,  Feb.  n,  1882),  12  Daly  (N.  Y.  Common 
Pleas),  377. 

A  disreputable  pettifogger  named  Remington,  who  re- 
cently ran  for  district  attorney  and  was  defeated,  has,  we 
understand,  acrain  sued  us  for  libel.  This  man  Remington 
is  a  very  miserable  fellow;  no  man  in  this  community  would 
say  that  it  is  possible  for  us  to  injure  him  to  the  extent  of 
six  cents.  The  community  could  hardly  despise  him  worse 
than  they  do  now.  —  [Verdict  for  $300  sustained.  —  Henry 
W.  Remington  v.  Beriah  Brown  et  a/.  (Madison  Daily  Argus 
and  Democrat),  7  Wis.  (1859),  4^2- 

A  fawning  sycophant,  by  the  name  of  David  Thomas  fa 
misrepresentative  in  Congress,  and  a  major-general  by  com- 
mission), has  fixed  his  eye  upon  the  office.  ...  It  was 
hoped  that  the  Legislature  would  frown  this  creeping  syco- 
phant, this  grovelling  office-seeker,  back  to  his  duty  at 
Washington  ;  that  they  would  spurn  at  his  impudent  attempt 
at  reaching  after  blessings.  —  [Verdict  for  $400  sustained. — 
David  Thomas  v.  Harry  Croswell  {Republican  Crisis,  Feb. 
2,  180S),  7  Johnson  (N.  Y.),  264. 

Was  not  the  envenomed  simpleton,  who  professes  to  be 
the  editor  of  that  paper  [the  Freeman's  Journal],  deprived 
of  a  participation  of  the  chief  ordinance  of  the  church  to 
which  he  belongs,  and  that  too  by  reason  of  his  infamous 
and  groundless  assertions  ?  Were  it  not  for  the  lenity  of 
some,  this  public  pest  would  long  since  have  been  silenced ; 
but  the  day  is  not  far  distant  when  the  deep-toned  bell  will 
toll  the  exit  of  his  paper.  — [Verdict  for  $500  sustained. — 
McCorkle  v.  Binns  (Democratic  Press,  Sept.  9,  1808),  5 
Binney  (Pa.),  340. 

It  is  said  that  his  marking  against  Tukey  [one  of   the 


176  NEWSPAPER   LIBEL. 

parties  in  a  case  before  a  jury,  of  which  the  prosecuting 
witness  was  a  member],  from  which  he  declared  with  em 
phasis  he  would  not  budge,  was  £499. 99,  but  he  did  budge 
from  it  for  this  reason:  he  agreed  afterwards  with  one  other 
juryman,  who  had  marked  differently,  to  stake  the  decision 
upon  a  game  of  draughts  with  him.  It  was  so  staked,  and 
the  game  going  against  Clark,  he  was  obliged  to  concur  with 
a  lower  marking.  —  [Commonwealth  v.  Elizur  Wright -(Bos- 
ton Daily  Chronotype,  May  14,  1847),  1  Cushing,  46. 

Elnathan  L.  Sanderson,  extra-radical  candidate  for  As- 
sembly from  the  Third,  Fourth,  and  Eleventh  wards  of  Brook- 
lyn, did  a  good  thing,  in  his  sober  moments,  in  the  way  of 
collecting  soldiers'  claims  against  the  government,  for  a  fear- 
ful percentage.  The  blood-money  he  got  from  the  "boys  in 
blue  "  in  this  way  is  supposed  to  be  a  big  thing,  and  may 
elect  him  to  the  Assembly  on  the  "loyal"  ticket,  although 
the  soldiers  and  sailors  are  out  in  full  force  against  him. — 
[Verdict  for  $5,000  sustained.  —  Sanderson  v.  William  Cauld- 
well  et  al.  (New  York  Sunday  Mercury),  45  N.  Y.  (1S71), 

The  Hunterdon  county  Democracy  must  admire  political 
filth.  They  certainly  placed  an  admirable  specimen  of  the 
corrupt  and  dirty  in  politics  in  the  field  for  State  senator  on 
Saturday.  John  Carpenter,  Jr.,  is  aringster  of  the  worst  sort. 
His  record  is  black  with  the  work  of  the  bosses.  He  has 
always  been  in  the  market.  He  will  bribe  and  be  bribed. 
The  place  for  John  Carpenter,  Jr.,  is  Clinton.  Trenton 
does  n't  want  him.  He  will  disgrace  both  the  Legislature 
and  the  party.  Keep  him  at  home.  —  [The  State  v.  Law- 
rence S.  Mott  (Trenton  Times),  45  N.  J.  Law  Reports  (1883), 
494. 

I  shall  prove  that  while  he  was  acting  (or  pretending  to 
act)  upon  a  committee  appointed  by  the  people  of  Monroe 
county  to  investigate  the  Masonic  outrage  [the  abduction  of 
Morgan],  he  furnished  money  to  enable  at  least  one  of  the 
kidnappers  to  escape  from  justice.     I  shall  then  prove  that 


LANGUAGE   WHICH    IS   LIBELLOUS.  jyy 

he  has  deliberately  and  solemnly  sworn  that  he  utterly  dis- 
approved of  the  whole  outrage,  and  that  he  had  no  agency 
in  it  before  or  after  its  commission.  —  [Signed]  THURLOW 
Weed. —[Verdict  for  $400  sustained. — -Jacob  Gould  v. 
Thurlow  Weed  (Rochester  Anti-Masonic  Enquirer,  Oct. 
27,  1829),  12  Wendell,  12. 

At  one  time  this  institution  was  known  among  the  stu- 
dents1 community  by  the  appropriate,  though  not  elegant, 
name  of  "  Obadiah's  Hash  House."  For  several  years  one 
Obadiah  Huse  acted  as  treasurer  for  the  society,  asking  no 
fee  for  the  time  he  spent  in  looking  after  the  financial  affairs 
of  the  association.  So  long  as  he  held  the  office  he  refused 
to  give  an  itemized  account  of  moneys  received  and  ex* 
pended,  but  at  the  close  of  each  year  reported  the  society 
his  debtor  by  one  hundred  or  two  hundred  dollars.  Last 
year  this  respected  treasurer  was  invited  to  resign.  ...  — 
[Huse  v.  Inter-Ocean  Pub.  Co.,  12  Bradwell  (111.  1883),  627. 

Detective  Swan  holds,  at  present,  some  one  and  a  half 
tons  of  rubber  picked  up  at  the  wreck  of  the  steamer  Rhode 
Island.  .  .  .  The  question  is,  What  did  Detective  Swan 
leave  this  city  for  and  go  to  the  scene  of  the  wreck?  Did 
he  go  to  protect  the  property  from  thieves,  and  assist  in  its 
saving,  or  did  he  go  for  the  purpose  of  scooping  in  what  he 
could  lay  his  hands  upon  ?  It  don't  seem  probable  that  cit- 
izen taxpayers  would  sanction  the  idea  of  paying  a  man 
$3.50  per  day  to  go  on  a  wrecking  cruise  and  keep  all  the 
spoils  he  could  get.  ...  —  [The  State  v.  Alonzo  Spear  et 
al.  (Providence  Sunday  Morning  Transcript,  Dec.  26,  1880), 
13  R.  I.  324. 

The  True  History  of  a  Great  Mining  Enterprise 
[the  notorious  Emma  mine].  —  ...  Mr.  Silas  Williams,  it 
seems,  is  admitted  by  Mr.  Park  to  be  about  the  best  man  in 
his  acquaintance  to  prepare  a  mine,  and  Mr.  Williams  was 
sent  for.  In  the  month  of  September,  the  number  of  men 
working  on  the  mine  was  reduced  from  a  hundred  to  a 
dozen.     No  one  was  allowed  to  go  into  the  mine  without  a 


178  NEWSPAPER   LIBEL. 

written  order,  and  armed  men  were  stationed  as  guards  at 
the  entrances,  while  Mr.  Silas  Williams  occupied  himself 
in  plastering  and  engrafting  silver  ore  on  to  the  limestone 
rock.  .  .  .  —  [Silas  Williams  v.  Edwin  L.  Godkin  et  al.  (the 
Nation,  Dec.  18,  1873),  5  Daly  (N.  Y.  Common  Pleas),  499. 

Characteristic  of  Him.  —  The  sneaking  innuendo 
thrown  out  by  the  Chronicle  last  week  at  ex-Gov.  Robinson 
and  Col.  Glick  is  characteristic  of  the  hypocritical  puppy 
who  wrote  it.  Both  gentlemen  alluded  to  by  our  subterra- 
nean contemporary  are  too  well  known  and  too  highly  es- 
teemed to  be  affected  by  cowardly  insinuations  coming  from 
a  source  so  notoriously  unreliable  as  the  Chrotiicle.  Coarse 
insinuation  is  the  favorite  weapon  of  the  poltroon,  and  this 
accounts  for  the  constabulary  organ's  use  of  it.  .  .  .  The 
editor  of  the  Chronicle  has  been  intoxicated  on  several 
occasions,  and  that,  too,  after  he  was  elected  to  the  Legisla- 
ture as  a  champion  of  prohibition. — [The  State  v.  James 
and  June  B.  Mayberry  (Burlingame,  Kan.,  Osage  County 
Democrat),  33  Kansas  (1885),  441. 

Was  His  a  Graveyard  Case?  —  Suspicions  aroused  by 
the  recent  death  of  John  F.  Downing. —  7  he  father's  story. 
—  The  death  of  John  F.  Downing,  who  was  buried  on  Tues- 
day, has  revived  the  matter  of  graveyard  insurance.  It  is 
reported  that  several  men  had  policies  on  his  life,  knowing 
when  they  were  issued  that  he  was  suffering  from  consump- 
tion, which  policies,  it  is  alleged,  were  obtained  through  a 
fraudulent  physical  examination  by  Dr.  Hennessey.  The 
father  of  the  deceased  .  .  .  had  been  informed  that  policies 
on  his  son's  life  were  held  by  Dr.  Hennessey,  Edward  Dris- 
coll,  Jr.,  W.  J.  Hurley,  Patrick  Gillan,  William  Barlow, 
Stephen  Broderick,  and  Patrick  Riley.  ...  —  [William  J. 
Hurley  and  Patrick  Gillan  v.  Fall  River  Daily  Herald  Pub- 
lishing Co.,  138  Mass.  (1S85),  334. 

We  are  in  receipt  of  a  letter  from  King  Kalakaua,  in 
which,  after  wishing  the  Progress  success  the  coming  year, 
he  says  in  pure  Hawaiian :  "  Ka  makua  mana  loa  maita  mai 


LANGUAGE   WHICH   IS   LIBELLOUS.  179 

ia  makou  E  haltai  aku  rel  we  ka  haan  au  E  wau  ka  waluhia 
O  rei  pac  aiua  wai  hawaua  hiihau  malolo  o  kou  maloua." 
As  many  of  our  readers  may  not  be  posted  in  this  language, 
we  translate  this  to  be:  "Never  go  into  a  lawsuit  with  Arch 
McGinnis  so  long  as  he  may  be  the  owner  of  those  books 
that  beat  Sutherland,  Jim  Ryan,  Cookerly,  and  whoever  they 
might  be  brought  up  against,  for  McGinnis  is  chitfest 
among  ten  thousand,  and  the  one  altogether  lovely  —  on  the 
swear.  ...  If  Beecher  is  really  desirous  of  laying  out 
Theodore  Tilton,  in  his  suit  now  in  progress  in  New  York 
City,  let  him  send  for  our  friend  McGinnis."  —  [Verdict  for 
$500  sustained.  —  McGinnis  v.  Gabe  (Bloomington  Pi  og- 
ress, Jan.  13,  1875),  68  Ind.  538. 

A  Gigantic.  Fraud. — How  the  First  ward  registry 
has  been  corrupted.  —  A  list  of  the  illegal  voters.  —  Over 
two  hundred  false  names  already  found. — Bogus  J'o- 
lack  nanus  used.  —  Details  of  the  boldest  attempt  ever 
made  to  corrupt  the  election.  —  Mike  Kraus''  list  of  Polish 
names.  —  When  Mike  Kraus,  the  partner  of  P.  V.  Deuster 
[in  the  publication  of  the  Milwaukee  Seebote,  a  German  news- 
paper], came  before  the  Board  of  Registration  of  the  First 
ward  with  a  list  of  250  Polack  names  for  registration,  the 
suspicions  of  the  Republicans  were  aroused.  .  .  .  Even 
under  the  infamous  Tweed  dynasty  in  New  York  Demo- 
cratic politics  there  was  never  any  fraud  as  bold  as  this 
attempted.  .  .  .  We  now  present  the  history  and  facts  of 
the  case,  and  leave  it  with  the  voters  of  Milwaukee  to  say 
whether  the  man  in  whose  interest  this  gigantic  fraud  has 
been  perpetrated  shall  represent  this  community  in  Con- 
gress.—  [Kraus  v.  the  Sentinel  Co.  (Milwaukee  Republican- 
Sentinel,  Nov.  4,  1882),  60  Wis.  425. 


i  So  NEWSPAPER   LIBEL. 


CHAPTER   VII. 

PRIVILEGED     PUBLICATIONS. 

In  a  certain  class  of  cases,  wherein  the  interests  of 
the  public  are  more  immediately  involved,  the  press  is 
given  especial  protection.  These  cases  are  called  privi- 
leged publications,  and  include  reports  of  judicial  and 
legislative  proceedings,  comments  upon  the  policy  of 
the  government,  the  conduct  of  public  men,  and  other 
matters  which  concern  the  public  welfare,  and  criticisms 
of  theatrical  and  musical  performances,  and  works  of 
art  and  literature.  In  such  cases  the  usual  assumption 
of  law,  that  every  defamatory  publication  is  prompted  by 
malice,  does  not  apply,  and  if  the  report  or  criticism  is 
made  fairly  and  in  good  faith,  no  legal  responsibility, 
either  civil  or  criminal,  attaches  to  the  publication.  The 
matter  published  must  be  confined  to  its  legitimate 
limits,  for  a  claim  of  privilege  will  never  protect  per- 
sonal abuse  ;  but  if  so  confined,  the  publication,  although 
false  and  defamatory,  is  not  actionable.1 

Publicity  is  almost  the  only  safeguard  of  the  proper 
administration  of  justice  ;  hence  the  full  and  free  publi- 
cation of  proceedings  in  open  court  is  privileged.  "  The 
policy  of  the  law  is  to  encourage  full  reports  of  judicial 

1  The  law  upon  this  subject  is  thus  defined  in  the  Penal  Code  of  New  York 
(§  244)  :  "  The  publication  is  excused  when  it  is  honestly  made  in  the  belief  of  its 
truth  and  upon  reasonable  grounds  for  this  belief,  and  consists  of  fair  comments 
upon  the  conduct  of  a  person  in  respect  of  public  affairs,  or  upon  a  thing  which 
the  proprietor  thereof  offers  or  explains  to  the  public." 


PRIVILEGED   PUBLICATIONS.  ^i 

proceedings  in  the  daily  press.  In  this  way  public 
attention  is  given  to  litigated  issues,  and  important  evi- 
dence frequently  elicited ;  the  people  generally  are  prac- 
tically instructed  in  the  law  of  the  land,  and  a  large 
auditory  secured,  by  which  the  decorum  of  bench  and 
bar  is  in  no  small  degree  subserved.  To  these  great  pub- 
lic ends  the  occasional  private  inconveniences  of  indi- 
viduals must  yield."1  The  report  must  not,  however,  be 
published  in  defiance  of  a  prohibition  by  the  Court,2 
nor  would  the  privilege  attach  to  any  indecent  or  blasphe- 
mous matter  contained  in  a  true  report.  Richard  Carlile 
read  to  the  jury  at  his  trial  the  whole  of  Paine's  "Age 
of  Reason,"  for  selling  which  he  had  been  indicted.  It 
was  held  that  the  privilege  did  not  attach  to  an  accu- 
rate account  of  the  trial,  published  by  his  wife,  wherein 
was  incorporated  the  whole  of  the  "  Age  of  Reason  "  as 
a  part  of  the  proceedings.3  The  report  must  also  be 
fair,  accurate,  and  impartial,  and  the  writer  is  not  at 
liberty  to  impute  falsehood  to  a  witness,  or  add  com- 
ments of  his  own  tending  to  give  false  color  to  the  tes- 
timony. 

The  New  York  Code  of  Civil  Procedure  thus  states 
the  law  upon  this  subject  substantially  in  accordance 
with  the  decisions  of  the  courts  in  the  other  States  :  — 

§  1907. —  An  action,  civil  or  criminal,  cannot  be  main- 
tained against  a  reporter,  editor,  publisher,  or  proprietor  of 
a  newspaper,  for  the  publication  therein  of  a  fair  and  true 
report  of  any  judicial,  legislative,  or  other  public  and  official 

1  Wharton's  Criminal  Law,  vol.  II.,  §  1639. 

2  See  ante.  p.  102. 

■'■  The  Kim;  v.   M  try  Carlile,  •  Barnewall  &  Alderson  (1819),   [67.     Richard 

Carlile  was  sentenced  to  pay  a   fine  of  £1,  00,  to  be   imprisoned   for  three  ye  il    , 
and  to  find  sureties  for  his  good  behavior  throughout  the  remainder  of  his  life. 
In  1S25,  five  years  after  receiving  his  sentence,  he  was  still  a  prisoner  in  Dor- 
chester jail.     (Odgers  on  Libel  and  Slander,  second  English  edition,  p.  4.(4. ) 
9 


l82  NEWSPAPER   LIBEL. 

proceedings,  without  proving  actual  malice  in  making  the 

report. 

^  !cp8.  —  The  last  section  does  not  apply  to  a  libel  con- 
tained in  the  heading  of  the  report,  or  in  any  other  matter 
added  by  any  person  concerned  in  the  publication,  or  in  the 
report  of  anything  said  or  done  at  the  time  and  place  of  the 
public  and  official  proceedings  which  was  not  a  part  thereof. 

A  "  true  report,"  within  the  meaning  of  the  New 
York  Code  of  Civil  Procedure,  and  according  to  the 
decisions  of  American  courts,  is  one  which  correctly 
represents  the  proceedings  as  they  took  place,  and  not 
of  necessity  one  wherein  the  reported  testimony  itself 
was  truthful.  A  condensed  report  may  be  published, 
if  prepared  fairly  and  truthfully,  but  the  suppression  of 
parts  of  the  testimony  which  would  tend  to  qualify 
defamatoiy  matter  contained  in  the  report  would  be 
evidence  of  malice,  and  would  destroy  the  privilege.1 
So  the  occurrence  of  slight  errors  would  not  destroy  the 
privilege,  if  they  do  not  materially  change  the  impres- 
sion which  the  report  would  make  on  the  mind  of  the 
ordinary  reader.  And  if  the  report  involve  matte 
defamatory  of  persons  not  parties  to  the  p'oceedings,  it 
is  still  privileged  if  accurate  and  impartial. 

The  privilege  extends  only  to  reports  of  proceedings 
actually  had  in  court.  The  defence  for  any  portion  of 
a  report  exceeding  that  limit  must  be  that  it  was  true  or 
that  it  was  not  defamatory.  It  has  also  been  said  that 
the  privilege  "  does  not  apply  when  the  court  has  no 
jurisdiction,  nor  when  the  publication  relates  to  a  mat- 
ter not  pertinent  to  the  issue."2     Privilege  is  frequently 

1  Ida  E.  Salisbury  7>.  Rochester  Union  and  Advertiser  Co.,  45  Hun  (N  V. 
Su]  jcine  Court,  1SS7),  120.  See,  also,  an  article  by  Seymour  D.  Thompson,  in 
the  Central  Law  Journal  (Si.  Louis),  Jan.  6,  188S,  on  "  Civil  Responsibility 
for  Words  Spoken  or  Written  in  Legal  Proceedings." 

2  Wait  on  Actions  and  Defences,  vol.  IV.,  p.  309. 


r 


PRIVILEGED   PUBLICATIONS.  183 

sacrificed  by  the  defamatory  character  of  the  heading 
given  to  a  report  by  the  news  editor.  Thus  the  New 
York  Evening  Express  published  a  report  stating  that 
one  Edsall  had  been  dismissed  from  the  police  force  of 
New  York  City.  The  report  itself  would  have  been 
privileged,  but  it  was  headed,  "  Black-mailing  by  a 
Policeman,"  and  the  Court  held  that  this  heading  de- 
stroyed the  claim  of  privilege.1 

A  report  is  not  privileged  which  gives  the  speeches 
of  counsel,  wherein  reflections  are  cast  upon  individu- 
als, but  which  does  not  state  the  evidence  or  explain  in 
any  way  the  defamatory  remarks  of  the  attorney.  The 
Bethlehem,  Pa.,  Times  published  the  following  as  a  por- 
tion of  the  argument  of  one  of  the  counsel  in  a  civil 
action  which  was  pending  in  one  of  the  courts  :  — 

The  plaintiff  in  this  case,  Mr.  Aaron  Lynn,  is  a  man  so 
notoriously  known  in  this  community  that  the  presumption 
that  he  brought  this  suit  in  good  faith  against  Mr.  Crist  to 
recover  money  justly  due  him  is  entirely  against  him.  He 
is  known  to  be  a  man  who,  hidden  behind  the  impregnable 
barrier  of  his  wife's  dress,  has  swindled  creditor  after  cred- 
itor, and  avoided  paying  his  honest  bills  in  this  town  for 
years.  ...  I  do  not  believe  you  can  find  one  out  of  every 
ten  men  in  Bethlehem  who  would  believe  this  man  Lynn 
under  oath.  .  .  . 

In  affirming  a  verdict  of  guilty,  found  against  the  pub- 
lishers of  the  Times,  the  Court  said  :  "  The  speech  of 
counsel  in  a  judicial  proceeding  does  not  afford  matter 
for  a  privileged  publication,  and  if  it  contain  scandal- 
ous and  defamatory  matter,  a  prosecution  for  libel  will 
be  maintained."2  The  defendants  were  sentenced  to 
pay  a  fine  of  nominal  amount. 

1  Isaac  W.  Edsall  v.  James  Brooks  ct  ah,  17  Abbotts'  Practice  Reports  (1864), 
221. 

2  Commonwealth  v.  Godshalk  et  a/.,  13  Philadelphia  Reports  (:877),  575. 


1 84  NEWSPAPER   LIBEL. 

If  the  report  was  prepared  by  a  writer  regularly 
employed  upon  the  paper,  it  is  presumed  that  it  was 
published  without  malice,  and  the  burden  of  proving 
malice  would  rest  upon  the  plaintiff;  whereas,  if  a  party 
to  the  litigation  or  one  of  the  attorneys  sent  it  for  pub- 
lication, the  jury  would  start  with  a  presumption  that  the 
report  was  biassed  and  unfair.1 

Comments  upon  proceedings  in  courts  of  justice  are 
privileged,  if  fairly  made  and  in  good  faith,  on  the 
ground  that  such  proceedings  are  matters  of  public  in- 
terest which  may  be  temperately  discussed  with  impu- 
nity. Comments  of  this  sort,  however,  should  not  be 
published  as  a  part  of  the  news  report,  or  be  incorpo- 
rated into  the  heading,  for  in  such  case  a  presumption 
of  malice  would  much  more  easily  arise.  The  place 
for  such  comments  is  in  the  editorial  columns.  It  has 
been  said  that  if  a  report  of  judicial  proceedings  is 
accompanied  by  defamatory  comments,  "  the  comments, 
being  libellous,  infect  the  legitimate  portion  of  the  pub- 
lication and  destroy  its  privilege."2 

The  decisions  are  conflicting  upon  the  question 
whether  the  rule  of  privilege  extends  to  ex  parte  pre- 
liminary proceedings,  such  as  affidavits  used  to  secure 
the  arrest  of  a  person  charged  with  crime.  In  the  case 
of  George  W.  Stanley  v.  James  Watson  Webb,  of  the 
New  York  Courier  and  Enquirer?  it  was  expressly  held 
that  a  report  of  such  proceedings  before  a  police  magi?, 
trate  is  not  privileged,  and  in  the  case  of  Charles  L. 
Timberlake  v.  the  Cincinnati  Gazette   Company,4  the 

1  Odgers  on  Libel  and  Slander,  p.  256. 

2  W.  L.  Murfree,  Sr.,  in  an  article  on  "  Privileged  Publications,  Legislative 
and  Judicial,"  in  the  Central  Law  Journal,  Nov.  27,  1885. 

'■■  4  Sandford  (N.  Y.  1850),  21. 

4  10  Ohio  State  Reports  (1860L  548. 


PRIVILEGED    PUBLICATIONS. 


I«5 


Court  was  of  the  same  opinion.     In  the  latter  ease  the 
libellous  report  was  as  follows  :  — 

Swindling.  —  Amongst  the  arrests  at  the  Ninth  Street 
station-house  yesterday,  appeared  the  name  of  C.  L.  Tim- 
berlake,  who  is  charged  with  petty  larceny;  he  having,  ac- 
cording to  the  statement  made,  bought  a  land  warrant  of  a 
lady  for  ninety-five  dollars,  and  when  the  lady  had  signed 
the  documents  making  the  warrant  over  to  him,  he  gave  her 
seventy-six  dollars,  and  would  give  her  no  more. 

Mr.  Timberlake  received  a  verdict  for  $500,  which 
was  sustained. 

It  was  charged  in  the  Jersey  City  Evening  Journal 
that  Allan  L.  McDermott,  an  attorney,  had  falsely  per- 
sonated a  constable,  and  as  such  had  read  a  warrant, 
which  he  pretended  to  execute.  This  charge  was  based 
on  statements  made  to  a  reporter  by  a  justice,  to  whom 
an  application  had  been  made  for  a  warrant  for  McDer- 
mott's  arrest.  The  statements  were  substantially  those 
of  the  persons  applying  for  the  warrant,  but  they  were 
not  made  to  the  justice  under  oath,  and  were  no  part  of 
judicial  proceedings.  The  Court  held  that  the  publi- 
cation was  libellous  and  not  privileged.1 

On  the  other. hand,  the  following  report,  published  in 
the  New  York  Times,  October  21,  187 1,  was  held  to  be 
privileged  :  — a 

Singular  Complications  in  a  Divorce  Case.  —  On 
Wednesday  last,  John  T.  Burleigh,  of  No.  23  Dey  Street, 
appeared  before  Judge  Shandley  at  Jefferson  Market  Police 
Court,  and  stated  that  several  important  letters  and  a  check 
for  thirty  dollars  were  stolen  from  his  safe  by  a  private  de- 
tective named  A.  A.  Ackerman.  .  .  . 

1  McDermotti'.  Evening  Journal  Association,  43  N.  J.  Law  Reports  (1881), 
488. 

Ackerman  v,  Jones,  37  N.  Y.  Superior  Court  Reports,  42. 


x86  NEWSPAPER   LIBEL. 

A  marked  advance  was  made  in  the  interpretation  of 
the  law  upon  this  branch  of  the  subject  of  privilege 
by  the  English  Court  of  Common  Pleas  in  1877.  An 
engineer  named  Usill  brought  suit  for  the  publication 
of  the  following  in  the  London  Daily  News,  Standard, 
and  Morning  Advertiser :  — 

Three  gentlemen,  civil  engineers,  were  among  the  appli- 
cants to  the  magistrate  yesterday,  and  they  applied  for 
criminal  process  against  Mr.  Usill,  a  civil  engineer,  of  Great 
Queen  Street,  Westminster.  The  spokesman  stated  that 
they  had  been  engaged  in  the  survey  of  an  Irish  railway  by 
Mr.  Usill,  and  had  not  been  paid  what  they  had  earned  in 
their  various  capacities,  although  from  time  to  time  they  had 
received  small  sums  on  account ;  and,  as  the  person  com- 
plained of  had  been  paid,  they  considered  that  he  had  been 
guilty  of  a  criminal  offence  in  withholding  their  money.  Mr. 
Woolrych  said  it  was  a  matter  of  contract  between  the  par- 
ties ;  and  although,  on  the  face  of  the  application,  they  had 
been  badly  treated,  he  must  refer  them  to  the  County  Court. 

Mr.  Usill  claimed  that  the  publication  was  not  privi- 
leged, inasmuch  as  it  was  a  report  of  an  ex  parte  appli- 
cation to  a  magistrate  who  had  no  jurisdiction  over  the 
case,  and  against  one  who  had  no  means  of  answering 
the  charges  made  against  him  ;  but  the  Court  held  that 
it  was  a  privileged  publication.1 

The  decision  in  this  case  was  fully  approved  by  the 
Court  of  Appeals  of  Maryland,  in  1878.  The  Balti- 
more American  published  the  following,  September  25, 

1875:  — 

A  Ruffian  Caged.  —  For  several  weeks  past  the  police 
of  the  North-Western  District  have  been  endeavoring  to 
make  the  arrest  of  a  man  named  William  McBee,  who  has 
occasioned  considerable  trouble  in  various  neighborhoods. 

1  Usill  v.  Hales  et  a/.,  3  Com.  Pleas  Division,  319. 


PRIVILEGED    PUBLICATIONS.  ^7 

It  appears  he  is  a  low  character  who  habitually  frequents 
the  streets  and  always  seeks  to  throw  himself  in  the  way  of 
school-girls,  often  insulting  them  with  indecent  remarks  and 
actions.  .  .  .  The  police  were  notified,  and  yesterday  suc- 
ceeded in  arresting  him.  He  was  given  a  hearing  in  the 
afternoon,  when  a  number  of  young  ladies  who  had  been 
approached  testified  as  to  the  facts  as  above  narrated.  Jus- 
tice McCaffray  committed  him  for  the  action  of  the  grand 
jury. 

It  appeared  that  the  facts  as  published  were  fur- 
nished to  the  reporter  by  Justice  McCaffray.  McBee 
was  tried  for  indecent  exposure  and  acquitted,  and  he 
then  brought  suit  for  damages  against  C.  C.  Fulton 
et  a/.,  of  the  American.  In  the  Circuit  Court  it  was 
held  that  the  publication  was  privileged,  if  it  was 
a  correct  account  of  the  charges  preferred  against 
McBee  in  the  course  of  an  official  inquiry  before  a  jus- 
tice of  the  peace,  and  this  opinion  was  approved  by  the 
Court  of  Appeals,  the  cases  of  Stanley  v.  Webb  and 
Timberlake  v.  the  Cincinnati  Gazette  Company,  cited 
above,  being  expressly  disapproved.  It  was  declared 
immaterial  whether  the  hearing  which  was  reported  was 
ex  parte  or  not,  and  whether  the  proceedings  resulted 
in  the  discharge  or  committal  of  the  prisoner.1 

The  weight  of  authorities  is  in  favor  of  extending 
the  privilege  to  reports  of  arrests,  so  long  as  such 
reports  do  not  assume  the  guilt  of  the  accused  and  are 
not  defamatory  in  other  respects.  Thus  it  has  been 
held  in  Maine  that  a  report  that  a  certain  person  has 
been  arrested  for  drunkenness  does  not  amount  to  an 
assertion  that  he  was  drunk,  and  proof  that  he  was  so 
arrested,  even  if  the  arrest  was  unwarranted,  would  be 

1  McFee  v.  Fulton  et  a!.,  47  Md.  403. 


^8  NEWSPAPER   LIBEL. 

a  good  defence.1  On  the  other  hand,  if  the  writer  goes 
beyond  the  mere  fact  of  the  arrest,  and  assumes  that 
the  prisoner  is  guilty  of  the  offence  charged  against 
him,  the  publication  would  not  be  privileged,  as  in  the 
case  of  the  following  paragraph  published  in  the  Kenne- 
bec Journal,  November  5,  1834  :  —  2 

Post-Office  Reform.  —  We  understand  that  Samuel 
Usher,  Esq.,  postmaster  of  Kingfield  in  Somerset  county, 
has  been  arrested  for  being  a  little  too  eager  for  the  spoils 
of  victory.  .  .  .  Mr.  Usher  found  the  proceeds  of  his  office 
but  an  insufficient  reward  for  his  party  services  until  at  last 
a  prize  came,  a  letter  with  a  $500  bill  in  it  from  General 
Crehore,  of  Boston,  to  Daniel  Pike,  Esq,  of  Kingfield. 
The  honest  and  patriotic  postmaster,  who  had  perhaps  been 
peeping  into  letters  for  some  time,  discovered  the  $500  bill 
and  removed  the  deposit  to  his  own  pocket. 

In  a  similar  case  in  Louisiana  a  verdict  for  one  thou- 
sand dollars  was  recovered  for  the  publication  in  the 
Crescent  of  a  report  of  the  plaintiff's  arrest  for  piracy,  to 
which  report  was  added  the  following  description  of  the 
prisoner  :  —  3 

A  land  and  water  rat  was  this  skipper  of  the  schooner, 
and  a  pet  of  criminal  justice  during  many  a  day,  ...  a 
brawny,  thick-set,  low-browed  bandit,  and,  to  all  appearances, 

"  As  mild  a  mannered  man 
As  ever  scuttled  ship  or  cut  a  throat." 

The  proceedings  of  every  court,  whether  of  a  justice 
of  the  peace  or  a  court  of  last  resort,  may  be  reported 
under  the  same  privilege,   provided  the  court  is  held 

1  George  G.  Stacy  v.  the  Portland  Pub.  Co.  {Daily  Press,  Sept.  24,  1875), 
68  Maine,  279. 

2  Samuel  Usher  v.  Luther  Severance,  20  Maine,  9. 

s  Frederick  Tresca  v.  Joseph  H.  Maddox,  n  Louisiana  Annual  Reports 
(1856),  206. 


PRIVILEGED   PUBLICATIONS.  189 

with  open  doors  and  the  proceeding  is  not  ex  parte. 
Where  a  preliminary  examination  is  not  ex  parte,  that 
is  to  say,  where  it  is  conducted  in  the  presence  of  the 
accused,  a  report  would  be  privileged ;  and  where  the 
hearing  is  ex  parte,  provided  it  ends  in  the  discharge  of 
the  accused,  the  publication  would  also  be  privileged, 
on  the  ground  that  the  proceedings  are  at  an  end,  and 
that  the  report  would  produce  no  hostile  effect  upon 
the  minds  of  a  future  jury. 

A  report  of  proceedings  before  a  grand  jury,  prior  to 
the  presentation  of  the  indictments  and  "  no  bills  "  in 
court,  has  been  held  not  to  be  privileged,1  for  the  rea- 
son that  such  proceedings  are  preliminary  and  ex  parte, 
and  that  their  publication  would  often  tend  to  thwart 
the  ends  of  justice.  An  aged  couple  named  Wilson 
had  been  murdered  at  Winetka,  near  Chicago,  early  in 
1884,  and  the  case  was  engaging  the  attention  of  the 
officials  at  the  State  attorney's  office.  It  so  happened 
that  the  assistant  State  attorney,  Baker,  one  day  had 
nothing  for  his  clerk,  Pean,  to  do,  and  accordingly 
directed  him  to  draw  up  an  indictment  against  J.  Apple- 
ton  Wilson,  who  was  a  nephew  of  the  murdered  couple, 
and  a  harmless  real-estate  agent.  Pean,  supposing  that 
Wilson  had  been  indicted  by  the  grand  jury  then  in 
session,  allowed  Gramer,  a  reporter  on  the  Chicago 
Tribune,  access  to  the  papers.  The  managing  editor 
of  the  Tribune  sent  Gramer  back  for  confirmation,  and 
he  got  the  names  confirmed.  The  reporter  was  also 
sent  to  see  Mr.  Wilson,  but  apparently  did  not  find 
him.  The  libellous  statement  that  Wilson  had  been 
indicted  was  accordingly  published,  March  14,  1884,  but 

1  McCabe  v.  Cauldwell  (New  York  Sunday  Mercury),  18  Abbotts'  Practice 
Reports  (1865),  377. 
9* 


190 


NEWSPAPER    LIBEL. 


upon  the  mistake  being  discovered,  a  full  retraction  of 
the  charge  was  promptly  and  publicly  made.  Never- 
theless Mr.  Wilson  sued  the  Tribune  for  $100,000  dam- 
ages. After  a  trial  lasting  five  days  and  a  half,  a  jury 
gave  him  a  verdict  for  $250.  In  charging  the  jury, 
Judge  Collins  said  :  "  It  is  no  defence  to  an  action  for 
libel  in  any  case  that  the  alleged  libel  is  a  faithful 
report  of  proceedings  of  a  grand  jury,  or  that  the 
defendant  believed  the  same  so  to  be,  the  indictment 
not  having  been  returned  into  court."  ] 

A  report  of  the  execution  of  a  criminal  does  not 
come  within  the  privilege.  Warren  WTood,  who  had 
been  sentenced  to  death  for  murder  in  New  York,  made 
a  speech  upon  the  scaffold  in  which  he  falsely  charged 
one  Sanford,  who  had  been  his  counsel,  with  misman- 
agement of  his  defence.  The  New  York  Herald  pub- 
lished, January  25,  1854,  an  account  of  the  execution, 
together  with  the  speech  of  the  condemned  man,  which 
was  clipped  from  the  Greene  County  Whig.  A  jury 
awarded  Mr.  Sanford  $250  in  his  suit  against  the  pro- 
prietor of  the  Herald?-  It  has  also  been  held  that  a 
newspaper  is  not  privileged  to  publish  the  contents  of  a 
petition  for  the  disbarment  of  an  attorney  prior  to  a 
hearing  in  open  court  upon  the  petition.  In  this  case 
the  petition  was  filed  in  the  office  of  the  clerk  of  courts, 
February  23,  1883,  but  after  the  publication  of  its  con- 
tents by  the  Boston  Herald,  the  petition  was  withdrawn 
from  the  files  of  the  court,  and  was  never  acted  upon. 
Judge  Oliver  Wendell  Holmes,  Jr.,  in  delivering  the 
opinion  of  the  Supreme  Judicial  Court,  stated  that  papers 
filed  in  the  clerk's  office  are  not  open  to  public  inspec- 

1  See  the  Chicago  Tribune,  April  19,  1885. 

2  Sanford  v.'  Bennett,  24  N.  Y.  20. 


PRIVILEGED    PUBLICATIONS. 


191 


tion,  and  that  no  privilege  attaches  to  their  publication. 
"  It  would  be  carr)  ing  privilege  farther  than  we  feel  pre- 
pared to  carry  it,"  says  Judge  Holmes,  "  to  say  that  by 
the  easy  means  of  entitling  and  filing  it  in  a  cause  a 
sufficient  foundation  may  be  laid  for  scattering  any 
libel  broadcast  with  impunity."  x 

In  the  Superior  Court  of  Detroit  it  was  decided  that 
newspapers  are  not  privileged  to  publish  reports  of 
declarations  or  complaints  filed  in  court  on  the  com- 
mencement of  suits.  The  defendant,  the  Free  Press 
had  published  a  synopsis  of  a  bill  for  divorce  filed  by 
a  Mrs.  Roue,  wherein  she  charged  her  husband  with 
adultery,  and  the  decision  of  the  Court  required  the 
defendant  to  justify  itself  by  proving  the  truth  of  Mrs. 
Rowe's  charges."2  The  Free  Press  was  subsequently 
compelled  by  the  jury  to  repair  the  innocent  husband's 
reputation  at  an  outlay  of  six  cents  in  damages. 

Reports  of  the  transactions  of  either  house  of  Con- 
gress, or  of  the  State  legislatures  and  their  committees, 
are  privileged  in  the  same  manner  as  reports  of  judi- 
cial proceedings.3  This  privilege  is  of  comparatively 
recent  date,  a  Federal  court  having  decided  in  1814  that 
a  defendant  in  a  suit  for  libel  might  plead  in  mitigation 
of  damages  that  the  alleged  libel  was  copied  from  the 
journals  of  Congress,  but  not  in  defence.4  A  report  of 
testimony  taken  before  an  investigating  committee  of 
Congress  has  been  held  to  be  privileged.5     The  matter 

1  Charles  Cowley  v.  Royal  M.  Pulsifer  et  al.,  137  Mass.  392. 

2  James  Rowe  v.  the  Detroit  Free  Press,  Washington  Law  Reporter,  Oct. 
31,  1885. 

3  See  ante,  p.  23. 

4  Romayne  v.  William  Duane  et  al.  (the  Aurora),  3  Washington's  Circuit 
Court  Reports,  246. 

5  J.  Randall  Terry  v.  J.  Q.  A.  Fellows  et  al.,  21  La.  Annual  Reports  (1869), 
375 


ig2  NEWSPAPER   LIBEL. 

charged  in  this  case  with  being  libellous  was  published 
in  the  New  Orleans  Times,  and  was  as  follows :  — 

J.  Randall  Terry  took  part  ifi  the  late  Rebellion  against 
the  United  States,  and  in  March,  1S62,  when  General  Lovell 
was  reviewing  the  Rebel  forces  in  this  city  to  show  their 
strength,  he  did  carry  the  black  flag  whereon  was  a  skull 
and  cross-bones,  which  meant  no  quarter  to  the  enemy  in  the 
fight. 

No  privilege  attaches,  however,  to  reports  of  the 
doings  of  a  legislative  body,  if  the  sessions  are  held 
with  closed  doors.  The  Galveston  Daily  News  pub- 
lished, with  the  consent  of  the  attorney-general  of 
Texas,  extracts  from  the  testimony  of  witnesses  before 
a  legislative  committee  empowered  to  collect  evidence 
regarding  alleged  land  frauds.  One  of  the  witnesses 
in  the  published  testimony  charged  the  plaintiff,  T.  L. 
Wren,  with  forgery,  and  Mr.  Wren  recovered  a  verdict 
for  $7,500  against  A.  H.  Belo  &  Co.,  proprietors  of 
the  News.  In  sustaining  the  verdict  and  judgment  of 
the  lower  court,  the  Supreme  Court  said  :  "  There  may 
be  cases  where  a  preliminary  and  ex  parte  proceeding 
would  be  privileged,  but  as  to  this  we  do  not  decide ; 
but  when  to  these  two  conditions  is  added  the  fact  that 
the  proceeding  is  conducted  in  secret,  we  know  of  no 
principle  in  the  law  of  libel  that  will  protect  the  publi- 
cation." The  Court  remarked  that  the  committee  had 
neither  legislative  nor  judicial  powers,  and  that  the 
attorney-general  ought  not  to  have  given  the  testimony 
to  the  public.1 

The  proceedings  of  a  town  council  may  be  reported 
under  the  protection  of  privilege.     The  Houma,  La., 

1  Wren  v.  Belo  et  al '.,  63  Texas  (1885),  686. 


PRIVILEGED   PUBLICATIONS. 


*93 


Courier  published   the    following,  October  8,   1881,  as 
part  of  a  report  of  a  town  council  meeting :  — 

The  mayor  made  a  verbal  contract  with  Mr.  John  Foley, 
for  #100,  for  the  cleaning  of  Barrow  Street  ditch,  which  has 
not  been  the  custom.  .  .  .  Mr.  J.  W.  Board  states  pub- 
licly that  it  was  a  put-up  job  by  the  mayor,  and  the  reason 
why  the  contract  was  not  written  was  because  the  mayor's 
son  was  interested  in  the  contract.  He  further  states  that 
the  work  they  want  $100  for  is  worth  about  thirty  dollars. 
"There  is  something  rotten  in  Denmark."  "More  white- 
wash needed." 

The  jury  found  that  it  was  a  substantially  true  report 
of  the  proceedings  of  the  town  council,  and  the  Court 
ruled  that  as  such  it  was  privileged.1  The  jury,  how- 
ever, after  rendering  their  verdict,  presented  a  paper  to 
the  Court,  which  concluded  with  the  following  some- 
what remarkable  finding:  — 

Said  article,  though  not  libellous,  is  ungentlemanly  in 
tone,  and  beneath  the  dignity  of  correct  and  honorable  jour- 
nalism. 

The  publication  of  defamatory  matter  is  privileged, 
as  has  been  seen,  where  it  occurs  in  a  true  and  impar- 
tial report  of  judicial  or  legislative  proceedings ;  but 
whether  this  exemption  from  liability  extends  to  reports 
of  political  or  other  public  meetings  is  a  question  not 
entirely  settled.  In  a  noted  case  in  New  York  it  was 
held  that  a  report  of  proceedings  at  a  public  meeting, 
assembled  for  the  purpose  of  nominating  a  candidate 
for  governor,  was  not  privileged,2  but  in  a  similar  case 
in  Pennsylvania  the  contrary  has  recently  been  main- 

1  H.  M.  Wallis,  mayor,  etc.,  v.  B.  F.  Bazet,  34  La.  Annual  Reports,  131. 

2  Lewis  v.  Few,  5  Johnson  (1809),  1. 


194 


NEWSPAPER   LIBEL. 


tained.1  In  respect  of  public  meetings  the  law  in  Eng- 
land is  in  advance  of  the  American  statutes  and  deci- 
sions. The  following  extract  from  the  English  "  News- 
paper Libel  and  Registration  Act,  1881,"  2  is  submitted 
as  a  suggestion  to  the  law-makers  of  the  several 
States  :  — 

Sect.  2.  —  Any  report  published  in  any  newspaper  of  the 
proceedings  of  a  public  meeting  shall  be  privileged,  if  such 
meeting  was  lawfully  convened  for  a  lawful  purpose  and 
open  to  the  public,  and  if  such  report  was  fair  and  accurate, 
and  published  without  malice,  and  if  the  publication  of  the 
matter  complained  of  was  for  the  public  benefit;  provided 
always,  that  the  protection  intended  to  be  afforded  by  this 
section  shall  not  be  available  as  a  defence  in  any  proceeding, 
if  the  plaintiff  or  prosecutor  can  show  that  the  defendant 
has  refused  to  insert  in  the  newspaper  in  which  the  report 
containing  the  matter  complained  of  appeared,  a  reasonable 
letter  or  statement  of  explanation  or  contradiction  by  or  on 
behalf  of  such  plaintiff  or  prosecutor. 

Numerous  defects  have,  indeed,  been  found  in  this 
section  of  the  act.  "  It  has  been  decided  by  the 
Queen's  Bench  Division  of  the  High  Court  of  Justice 
that  under  the  Newspaper  Libel  Act  of  188 1,  the  re- 
port of  a  public  meeting  is  not  privileged  if  anything 
reported  to  the  detriment  of  an  individual  is  not  a  mat- 
ter of  common  interest.  Under  this  ruling,  newspapers 
are  grievously  hampered,  for  reports  received  just  be- 
fore going  to  press  cannot  be  reviewed  with  care  suffi- 
cient to  weed  out  all  libellous  allusions  without  the  exer- 
cise of  supernatural  discretion.     Either  copy  must  be 

1  Briggs  v.  Garrett,  in  Pa.  State  Reports  (1886),  404.  (These  cases  are 
cited  at  length  in  Chap.  VIII.  on  Political  Libels.) 

2  44  &  45  Vict.c.  60.  In  the  following  year  the  Legislature  of  Ontario  passed 
a  similar  act. 


PRIVILEGED   PUBLICATIONS.  I95 

mangled  beyond  recognition,  or  suffered  to  retain  ex- 
pressions that  a  jury  might  adjudge  to  be  uninteresting 
to  them,  and  therefore  libellous."  2  Under  the  construc- 
tion of  the  courts,  the  protection  of  the  act  does  not  ex- 
tend to  reports  of  meetings  at  which  the  public  are  pres- 
ent merely  as  spectators;  in  other  words,  a  meeting  is 
only  "public"  when  the  citizens  at  large  may  actively 
participate  —  speaking  and  voting  if  they  choose.2 

Not  only  are  comments  and  criticisms  upon  public 
affairs  privileged,  but  the  privilege  also  extends  to  a 
large  class  of  projects  of  a  semi-public  character  which 
are  dependent  on  public  favor  or  confidence.  Thus  the 
management  of  railway  and  insurance  companies,  banks, 
boards  of  trade,  charitable  organizations,  and  public 
fairs,  may  be  criticised,  so  long  as  the  writer  acts  in 
good  faith,  and  does  not  seek  to  make  the  law  of  privi- 
lege a  cloak  for  defamation  of  character.  When  an 
individual  or  organization  invites  public  attention  in  any 
way,  public  criticism  is  challenged  ;  as  by  a  politician 
who  accepts  office  or  candidacy  for  office,3  an  artist, 
public  writer,  lecturer,  show-man,  dealer  in  patent  medi- 
cines, or  advertiser  of  any  business  enterprise. 

Where  the  libel  consisted  of  a  charge  that  the  plain- 
tiff had  been  an  accomplice  of  John  Brown,  in  Virginia, 
and  that,  in  order  to  avoid  arrest,  he  had  feigned  in- 
sanity and  taken  refuge  in  a  lunatic  asylum,  it  was  held 
that  it  was  no  defence  to  show  that  the  plaintiff  was  a 
public  lecturer,  the  publication  not  coming  within  the 

1  Boston  Advertiser,  Aug.  16,  1887. 

2  Odgers  on  Libel  and  Slander,  second  English  edition,  London,  1887,  chap. 
XIII.  A  bill  is  now  before  Parliament,  entitled  the  "  Law  of  Libel  Amendment 
Act,  1888,"  designed  to  remedy  these  defects  in  the  earlier  act.  (The  Journal- 
ist, May  12,  1888,  quoting  the  London  Daily  Telegraph.)  A  similar  amend- 
atory act  failed  of  passage  in  1887. 

3  See  next  chapter. 


196 


NEWSPAPER   LIBEL. 


bounds  of  privilege.1  But  where  the  plaintiff  was  a 
professor  of  surgery,  and  the  libel  charged  him  with 
seducing  a  patient,  the  publication  was  held  to  be  privi- 
leged, unless  it  was  shown  to  be  false  and  malicious. 
The  jury  found  that  it  was  false,  and  that  it  was  pub- 
lished "for  sensation  and  increase  of  circulation,"  and 
this  the  Court  held  to  constitute  malice.  The  defend- 
ant paid  a  verdict  of  $20, 000. 2 

The  question  of  privilege  seems  often  to  partake  of 
the  nature  of  a  lottery.  The  Detroit  Evening  Journal, 
July  29,  18S5,  published  an  article  headed  "Unwar- 
rantable Outrage,"  charging  a  deputy  sheriff  with 
arresting  peaceable  and  innocent  men  as  tramps  merely 
to  get  the  fees  allowed  by  law  for  such  service.  This 
was  held  by  the  Supreme  Court  of  Michigan  to  be  libel- 
lous/^/- se,  and  not  to  be  privileged.  The  Court  (Judge 
Morse)  remarked  :  "  The  reason  for  the  privilege,  which 
is  supposed  to  be  the  accomplishment  of  the  public 
good  by  a  certain  liberty  of  discussion  and  publication, 
cannot  be  applied  to  cases  where  the  effect  of  the  exer- 
cise of  the  privilege  must  necessarily  result  in  public 
evil  as  well  as  private  injury."  Judgment  for  the  plain- 
tiff in  $300  was  affirmed.3  But  assuming  that  the  arti- 
cle was  true,  the  publication  would  not  "  necessarily  re- 
sult in  public  evil  ";  on  the  contrary,  the  highest  public 
good  would  be  accomplished  by  calling  attention  to  the 
abuse  of  authority  on  the  part  of  a  public  officer.  This 
is  the  true  test  of  the  question  of  privilege  in  such  a 

1  Gerrit  Smith  v.  the  Tribune  Company,  4  Bissell  (U.  S.  Circuit  Court, 
Northern  District  of  Illinois,  1867),  477. 

2  Donald  Maclean  v.  James  E.  Scripps  (Detroit  Evening  News) ,  52  Mich. 
(1883),  214.     (See  this  case  in  Chap.  X.  on  Damages.) 

3 Michael  Bourreseau  v.  Detroit  Evening  Journal  Co.,  30  Northwestern  Re 
porter,  376. 


PRIVILEGED   PUBLICATIONS.  jgy 

case  :  Would  the  publication,  if  true,  tend  to  promote 
the  public  good  ?  Then,  if  false,  but  published  without 
malice,  it  should  be  protected  by  the  law  of  privilege. 
The  author  submits  the  opinion  that  the  law  of  the  Su- 
preme Court  of  Michigan  in  this  case  is  as  bad  as  its 
rhetoric.  The  decision  practically  nullifies  in  that  State 
the  whole  law  of  privilege. 

It  has  been  held  that  a  member  of  a  religious  asso- 
ciation who  secures  the  adoption  and  publication  in 
denominational  papers  of  resolutions  withdrawing  fel- 
lowship from  a  member  of  the  association  pending  a 
hearing  upon  charges  of  "untruthfulness,  deception, 
and  creating  disturbance  among  the  churches,"  is  not 
liable  in  damages.  In  the  absence  of  proof  of  malice, 
the  publication  would  be  privileged.1  In  a  like  dis- 
charge of  public  duty  the  Boston  Daily  Advertiser  pub- 
lished, under  the  head  "History  Repeated,"  a  charge 
that  Edward  Crane  had  brought  the  Boston,  Hartford 
and  Erie  Railroad  Company  to  bankruptcy,  and  was 
attempting  to  involve  the  New  York  and  New  England 
Railroad  Company  in  a  similar  fate.  Judge  Lowell,  of 
the  United  States  Circuit  Court,  held  on  demurrer  that 
the  publication  was  privileged.2  In  his  opinion  Judge 
Lowell  remarked  :  "  Inasmuch  as  the  project  was  one 
which  affected  a  long  line  of  road,  as  yet  only  partially 
built,  and  the  consolidation  of  several  companies,  it 
assumes  public  importance."  On  the  other  hand  it  has 
been  held  in  the  Supreme  Court  of  California  that  a 
trustee  of  a  mining  corporation  is  not  a  public  officer 
whose  conduct  may  be  publicly  criticised  under  the  pro- 
tection of  privilege.3 

1  David  Shurtleff  v.  Alfred  Stevens,  51  Vt.  (1879),  501. 

2  Crane  7'.  Waters,  10  Federal  Reporter  (1882),  619. 

'••  Wilson  v.  Fitch  et  at,  (San  Francisco  Bulletin),  41  Cal.  363. 


io8 


NEWSPAPER   LIBEL. 


The  Montreal  Amateur  Athletic  Association  sued 
the  Montreal  Post  for  the  publication  of  charges  that 
members  of  its  lacrosse  team  had  sold  a  game  which 
had  been  played  with  the  Cornwall  team.  Mr.  Justice 
Davidson,  in  charging  the  jury  in  the  Superior  Court, 
said  that  newspapers  were  privileged  to  criticise,  if 
done  without  malice,  lacrosse  matches  or  any  other 
performances  to  which  the  public  are  admitted  upon 
the  payment  of  an  admission  fee.  The  plaintiff  asso- 
ciation had  a  verdict  for  twenty-five  cents.1 

Among  affairs  of  a  semi-public  nature  which  may  be 
discussed  and  criticised  in  the  press  with  impunity,  so 
long  as  the  discussion  and  criticism  are  in  good  faith, 
are  dramatic,  musical,  and  literary  works,  and  works  of 
art.  Here,  as  throughout  the  whole  range  of  privi- 
leged publications,  the  writer  must  avoid  personal 
defamation,  and  actual  malice  must  be  proved  against 
the  writer  or  publisher  to  render  him  liable.  The  play- 
wright, author,  and  artist,  by  the  public  presentation  of 
their  works,  invite  criticism,  and  they  cannot  complain 
if  the  criticism  is  hostile.  As  Lord  Ellenborough  said 
in  a  noted  case :  "  Libertv  of  criticism  must  be 
allowed,  or  we  should  neither  have  purity  of  taste  nor 
of  morals.  Fair  discussion  is  essentially  necessary  to 
the  truth  of  history  and  the  advancement  of  science."  2 
If,  however,  the  playwright  or  actor  confines  himself  to 
private  theatricals,  or  the  author's  book  is  designed 
for  private  circulation,  or  the  artist  retains  his  painting 
in  the  privacy  of  his  studio,  the  works  are  not  even  of  a 
semi-public  nature,  and  not  being  dependent  on  public 

1  Montreal  Post,  Feb.  i,  1888. 

2  Tabart  v.  Tipper  {Satirist  or  Monthly  Meteor),  1  Campbell  (Eng.  1 
3SO. 


PRIVILEGED    PUBLICATIONS.  IQo 

favor,  the  public  have  no  such  interest  in   their  discus- 
sion as  will  sustain  a  claim  of  privilege. 

The  New  York  Herald  published  a  series  of  eleven 
articles  from  November  3,  1848,  to  February  11,  1849, 
in  which  the  conduct  of  Edward  P.  Fry,  as  a  manager 
of  Italian  opera,  was  severely  commented  upon.  It  was 
charged  that  Mr.  Fry  had  employed  critics  to  defame 
the  female  members  of  his  company  in  hired  news- 
papers ;  that  Madame  Pico  was  insulted  and  discharged 
from  the  company,  and  that  she  had  sued  the  man- 
ager; that  Fry  had  packed  the  Astor  Place  Opera 
House  with  loafers  and  hirelings  to  hiss  Benedetti  off 
the  stage  ;  that  the  manager  appeared  before  the  audi- 
ence and  "sustained  his  favorite  character  of  an  ape, 
by  no  means  for  the  first  time";  that  he  was  a  "half- 
starved  musical  adventurer"  ;  that  the  opera  season  was 
a  history  of  ridiculous  blunders,  disgraceful  brawling, 
and  broken  promises  ;  that  Mr.  Fry's  opera  in  Phila- 
delphia had  collapsed  ;  that,  but  for  the  patronage  of 
public  gamblers  at  the  opera,  the  manager  could  not 
sustain  himself  a  week,  etc.,  etc.  Mr.  Fry  brought 
suit  for  libel  against  James  Gordon  Bennett,  in  February, 
1849.  Mr.  Bennett  maintained  in  defence  that  the 
articles  were  true ;  that  he  believed  them  to  be  true 
when  he  published  them  ;  that  he  published  them  with- 
out malice;  and  that,  therefore,  they  were  privileged. 
After  more  than  fourteen  years  of  litigation,  the  Court 
of  Appeals,  in  September,  1863,  held  that  the  bounds 
of  privilege  had  been  exceeded,  and  a  verdict  for  the 
plaintiff  for  $6,000  was  sustained.1  In  such  a  case  an 
editor  is  responsible  for  the  truth  of  what  he  alleges 

1  Fry  v.  Bennett,  5  Sandford,  54;  4  Duer,  247;  3  Bosworth,  201;  28 
N.  Y.  324. 


200  NEWSPAPER    LIBEL. 

to  be  facts,  but  his  comments    upon  facts  which   are 
either  admitted  or  proved  would  be  privileged. 

A  writer  is  not  at  liberty  to  make  a  criticism  of  a 
work  of  literature  or  art  an  occasion  for  personal  def- 
amation. Col.  William  L.  Stone  published  the  fol- 
lowing in  the  New  York  Commercial  Advertiser,  June 
8,  1839,  in  the  course  of  a  criticism  of  J.  Fenimore 
Cooper's  "  Naval  History  of  the  United  Stales":  — 

We  were  certainly  not  prepared  to  find  that  the  infatua- 
tion of  vanity  or  the  madness  of  passion  could  lead  him  to 
perveit  such  an  opportunity  to  the  low  and  paltry  purpose  of 
bolstering  up  the  character  of  a  political  partisan,  an  official 
sycophant. 

Col.  Stone  was  required  to  pay  an  arbitrators'award 
of  $300  for  this  article.1 

Charles  Reade  brought  suit  against  the  publishers  of 
the  Round  Table  for  criticisms,  published  in  1866,  upon 
his  novel  "  Griffith  Gaunt."  The  alleged  libels  de- 
nounced the  novel  as  "  one  of  the  worst  stories  that 
had  been  printed  since  Sterne,  Fielding,  and  Smollett 
defiled  the  literature  of  the  already  foul  eighteenth 
century,"  and  said  that  the  book  "is  not  only  tainted 
with  this  one  foul  spot,  it  is  replete  with  impurity,  it 
reeks  with  allusions  that  the  most  prurient  scandal- 
monger would  hesitate  to  make."  Finally  the  writer 
questioned  Reade's  claim  to  the  authorship  of  the 
novel.  Judge  Clarke  said  in  his  charge  to  the  jury: 
"  The  critic  can  say  of  the  player  that  he  '  mouths  his 
speech,  as  many  players  do,'  or  that  'he  saws  the  air  too 
much  with  his  hand,'  or  that  he  'tears  a  passion  to  tat- 
ters, to  very  rags,  to  split  the  ears  of  the  groundlings'; 

1  Cooper  v.  Stone,  24  Wendell,  434.  The  criticism  was  written  by  President 
Dner,  of  Columbia  College. 


PRIVILEGED   PUBLICATIONS.  201 

but  he  cannot  abuse  him  as  '  a  robustious,  periwig-pated 
fellow,'  and  recommend  that  he  should  be  'whipt  for 
o'erdoing  Termagant.'  "  The  judge  held,  as  a  matter 
of  law,  that  the  criticisms  were  libellous  on  their  face, 
and  not  within  the  rule  of  privilege.  The  suit  was 
brought  to  recover  $25,000,  but  the  jury  gave  Mr. 
Reade  a  verdict  for  only  six  cents,  perhaps  for  the 
reason  that  he  had  already  been  sufficiently  compen- 
sated by  the  advertising  which  his  book  had  received.1 
It  was  proved  at  the  trial  that  60,000  copies  of  the 
novel  had  been  sold  after  the  publication  of  the  libel. 

Another  curious  case  where  the  bounds  of  privilege 
were  exceeded,  but  where  the  damages  were  only 
nominal,  is  that  of  Whistler  v.  Ruskin.2  Mr.  Whistler, 
the  artist,  took  umbrage  at  an  article  written  by  John 
Ruskin  on  the  pictures  in  the  Grosvenor  Gallery,  and 
brought  suit  for  libel.  He  was  awarded  one  farthing, 
without  costs.  The  defamatory  words,  as  published  in 
Fors  Clavigera,  were  as  follows  :  — 

For  Mr.  Whistler's  own  sake,  no  less  than  for  the  protec- 
tion of  the  purchaser,  Sir  Coutts  Lindsay  ought  not  to  have 
admitted  works  into  the  gallery  in  which  the  ill-educated 
conceit  of  the  artist  so  nearly  approached  the  aspect  of 
wilful  imposture.  I  have  seen  and  heard  much  of  cockney 
impudence  before  now,  but  never  expected  to  hear  a  cox- 
comb ask  two  hundred  guineas  for  flinging  a  pot  of  paint  in 
the  public's  face. 

The  famous  "  Cardiff  Giant  "  was  once  involved  in 
a  libel  suit,  though  not  as  an  unlucky  defendant  or  (as 
is  generally  the  case)  an  equally  unfortunate  plaintiff. 
The    giant   was  rapidly  losing  his  prestige  as   a  nine- 

1  Reade  v.  Sweetzer  rt  til  ,  6  Abbotts'  Practice  Reports  (new  series),  9,  note. 

2  See  Odgers  on  Libel  and  Slander,  p.  49,  citing  the  London  Times  for  Nov. 
26  and  27,  1878. 


202  NEWSPAPER   LIBEL. 

days'   wonder,   when   the   Boston    Sunday  Herald  pub- 
lished, November  13,  1873,  the  following  story:  — 

The  sale  of  the  Cardiff  Giant,  so  called,  at  New  Orleans, 
for  the  small  price  of  $8,  recalls  the  palmy  days  of  that 
ingenious  humbug.  .  .  .  The  Harvard  professors  and  other 
learned  men  traced  its  pedigree  by  their  knowledge  of  artistic 
history,  and  constructed  theories  as  to  its  origin,  which  at 
once  displayed  their  erudition  and  helped  to  advertise  the 
show.  .  .  .  Not  long  afterwards  the  man  who  brought  the 
colossal  monolith  to  light  confessed  that  it  was  a  fraud,  and 
the  learned  gentlemen,  who  had  endorsed  its  authenticity, 
were  left  as  naked  as  the  statue  itself. 

Calvin  O.  Gott,  the  owner  of  the  giant,  brought  suit 
against  the  publishers  of  the  Herald,  under  the  law 
relating  to  slander  of  title,1  claiming  $30,000  damages 
on  account  of  the  alleged  loss  of  an  opportunity  to 
sell  the  giant  for  that  sum.  The  jury  found  for  the 
defendants,  but  a  new  trial  was  granted  on  account  of 
an  error  in  the  judge's  charge,  and  the  case  was  finally 
settled  out  of  court.  Chief  Justice  Gray  (now  of  the 
United  States  Supreme  Court)  said  in  the  opinion : 
"  The  editor  of  a  newspaper  has  the  right,  if  not  the 
duty,  of  publishing,  for  the  information  of  the  public, 
fair  and  reasonable  comments,  however  severe  in  terms, 
upon  anything  which  is  made  by  its  owner  a  subject  of 
public  exhibition,  as  upon  any  other  matter  of  public 
interest;  and  such  a  publication  falls  within  the  class 
of  privileged  communications  for  which  no  action  can 
be  maintained  without  proof  of  actual  malice.  .  .  .  But 
such  an  intention  may  be  inferred  by  the  jury  from 
false  statements,  exceeding  the  limits  of  fair  and 
reasonable  criticism,  and   recklessly  uttered    in   disre- 

1  See  ante,  p.  164. 


PRIVILEGED   PUBLICATIONS.  203 

gard  of  the  rights  of  those  who  might  be  affected  by 
them."  1 

In  the  Philadelphia  Press,  July  13,  1S83,  was  pub- 
lished a  reporter's  interview  with  Sylvester  N.  Stewart 
regarding  Stewart's  "  School  for  Reporters."  The 
article  was  headed  "  How  Col.  Stewart  Proposes  to 
Manufacture  City  Editors,"  and  in  it  the  propr.etor 
was  treated  with  ridicule,  and  his  school  with  more  or 
less  contempt.  Stewart  brought  suit  for  damages,  and 
recovered  judgment  for  $1,200  in  the  Court  of  Common 
Pleas.'2  Judge  Peirce  in  this  court  instructed  the  jury 
that  while  the  occasion  of  the  article  was  privileged, 
actual  malice  might,  nevertheless,  be  inferred  from  the 
tone  of  the  article  itself ;  but  the  Supreme  Court,  after 
hearing  the  case  twice  argued,  decided  that  since  the 
article  was  privileged,  the  malice  necessary  to  sustain 
the  action  must  be  shown  independently  of  the  article, 
and  final  judgment  in  favor  of  the  Press  Company  was 
entered.3 

This  decision  of  the  Supreme  Court  of  Pennsylvania 
practically  overrules  the  decision  of  the  same  court  in 
the  case  of  Daniel  O'Niell  v.  John  W.  Pittock  et  a/.,  of 
the  Pittsburg  Sunday  Leader*  In  the  latter  case  it 
was  held  that  a  report  of  judicial  proceedings  might 
contain  intrinsic  evidence  of  malice.  Malice,  in  the 
case  cf  a  privileged  publication,  cannot  be  proved  by 
showing  the  falsity  of  the  publication,  but  it  may  be 
done   by  showing  that  the  defendant  had  been  in  the 

1  Calvin  O.  Gott  v.  R.  M.  Pulsifer  et  a!.,  122  Mass.  235. 

2  Philadelphia  Press,  Nov.  20,  1885. 

3  Philadelphia  Press,  April  10,  1888.  See  also  the  Philadelphia  Inquirer, 
Feb.  9,  1887. 

4  63  Pa.  State  Reports  (1869),  253.  To  the  same  effect  the  case  of  John 
Baxter  v.  Rolfe  S.  Saunders  et  al.  (knoxviile  Sunday  Whig and  Register) ,6 
Heiskell  (Tenn.  1871),  369. 


204 


NEWSPAPER   LIBEL. 


habit  of  libelling  the  plaintiff,  or  that  the  article  com 
plained  of  was  violent  and  exaggerated. 

Any  matter  published  for  the  protection  of  one's  own 
person,  property,  or  reputation,  is  privileged,  in  the 
absence  of  express  malice.  One  Saturday,  in  1847,  a 
pilot  of  the  port  of  New  York  boarded  an  incoming 
packet  ship  off  Long  Island.  The  captain  of  the  ship 
was  a  bearer  of  very  important  despatches  for  all  the 
New  York  papers.  The  pilot  asked  for  those  for  the 
Herald,  intending  to  reach  the  shore  in  his  boat  and 
carry  the  despatches  by  land  post-haste  to  the  city, 
thereby  gaining  several  hours.  The  captain,  however, 
refused  to  deliver  the  Herald  despatches  unless  the 
pilot  would  agree  to  take  also  those  for  the  other  papers 
and  deliver  all  at  once.  Finally  the  pilot  consented. 
He  reached  New  York  Sunday  morning,  delivered  the 
parcel  addressed  to  the  Herald,  and  then  went  home  to 
breakfast.  After  a  bath  and  change  of  clothing,  he 
walked  down  town  and  left  the  remaining  press  de- 
spatches on  a  table  in  the  post-office.  The  other  papers 
received  their  parcels  in  the  usual  course  of  business, 
Monday  morning,  but  the  Hctald  had  meanwhile  pub- 
lished an  extra  Sunday  afternoon,  containing  a  great 
foreign  "exclusive."  The  Express  commented  severely 
on  the  conduct  of  the  pilot,  without,  however,  using  his 
name,  and  charged  him  with  a  grave  breach  of  confi- 
dence The  pilot  brought  suit  for  damages,  but  the 
Court  ruled  at  the  trial  that  if  the  editorial  in  the  Ex- 
press was  published  in  the  assertion  of  a  right,  or  for 
the  protection  of  its  own  interests,  the  plaintiff  could 
not  recover,  and  the  jury  found  a  verdict  for  the  de- 
fendant.1 

1  Lyons  v.  Townsend,  2  Edmonds'  Select  Cases,  452. 


PRIVILEGED   PUBLICATIONS.  205 

In  the  course  of  a  business  controversy,  R.  B.  Chaf- 
fin,  of  the  firm  of  R.  B.  Chaffin  &  Co.,  real-estate  agents, 
stated  in  the  Richmond  Dispatch  that  David  H.  Lynch 
had  attempted  to  decoy  away  their  customers.     Lynch 
replied  in  the  same   paper  by  characterizing   Chaffin 's 
statement  as  "  a  contemptible,  cowardly,  and  malicious 
lie."     Chaffin  then  published  a  card  (March  12,  1884), 
in  which  he  referred  to  Lynch's  "known  character  as  a 
liar,"    and  said   that   any   person   who  was  "  scoundrel 
enough  "  to  act  as  he   had  done  "  would   be  unprinci- 
pled enough  to  deny  it  when  charged  with  it."     Lynch 
thereupon  brought   suit  for  libel.      The  Circuit  Court 
held  that  Chaffin's  final  card  was  not  privileged,  and 
the  plaintiff  had  a  verdict  for  $1,500;  but  the  Supreme 
Court  of  Appeals  decided  that  the  occasion  of  Chaffin's 
card  was  privileged,  inasmuch  as  the  card  was   pub- 
lished for  the  protection  of  his  own  interests.     Accord- 
ingly, it  should  have  been  left  to  the  jury  to  say  whether 
the  defendant  had  abused  his  privilege,  and  had  acted 
with  malice.     A  new  trial  was  granted.1 

A  person  seeking  to  protect  his  own  interests  is  not 
justified  in  sending  a  letter  to  a  newspaper  for  publica- 
tion, with  regard  to  the  conduct  of  another  person,  un- 
less there  is  no  way  involving  less  publicity  in  which 
he  can  protect  his  rights.  But  the  fact  that  the  letter 
was  published  in  a  newspaper  and  was  read  by  some 
who  were  not  interested  in  the  subject-matter,  does  not 
necessarily  take  away  the  privilege.  Finally,  the  style 
or  temper  of  such  a  letter  may  raise  a  presumption  of 
malice  which  would  destroy  the  writer's  exemption  from 
liability. 

An  advertisement  in  a  newspaper  warning  the  public 

1  Richmond  Dispatch,  April  15,  1887;  1  Southeastern  Reporter,  803. 
10 


206  NEWSPAPER    LIBEL. 

against  negotiating  certain  notes  is  privileged.1  So 
also  is  an  advertisement  announcing  that  a  certain  per- 
son has  left  the  employment  of  the  advertiser,  and  that 
he  is  no  longer  authorized  to  collect  bills.2 

The  Mercantile  Agency  Notification  Sheet,  November 
5,  1884,  contained  this  statement :  — 

New  Jersey.  Red  Bank.  Patterson,  Emma.  Chattel 
mortgage,  Samuel  Ludlow,  $1,385.     Clothing. 

This  was  understood  as  intimating  that  Emma  Pat- 
terson had  given  a  chattel  mortgage,  a  fact  which  would 
tend  to  impair  her  credit  as  a  clothing  dealer.  She 
brought  suit  against  Anthony  J.  King  et  a/,  for  the  libel. 
The  Court  of  Errors  and  Appeals  held,  by  a  vote  of 
nine  to  five,  that  communications  of  a  mercantile  agency 
are  not  privileged  when  they  are  so  made  that  they  fall 
into  the  hands  of  persons  to  whom  the  agency  owes  no 
duty  to  inform  them  of  the*  standing  of  any  certain 
dealer/'  On  the  other  hand,  where  the  communication 
is  made  in  good  faith  to  a  subscriber  who  has  an  in- 
terest in  learning  the  facts  concerning  the  financial 
condition  of  another  person,  and  where  it  is  made  under 
circumstances  of  reasonable  caution  as  to  its  being 
confidential,  it  is  privileged  even  though  the  statements 
are  untrue.4 

In  conclusion,  it  may  be  repeated  that  a  privileged 
publication  is  only  one  the  occasion  of  which  rebuts 
the  prima  facie  presumption  of  malice,  and  throws  upon 

1  Commonwealth  v.  Featherstone  et  al.  (Philadelphia  Evening  Bulletin),  9 
Philadelphia  Reports  (1872),  594. 

2  George  W.  L.  Hatch  v.  Elias  N.  Lane  (Taunton  Daily  Gazette),  105  Mass. 
(1870),  394. 

;)  49  N.  J.  Law  Reports  (1887),  417. 

4  Trussell  v.  Scarlett,  trading  as  R.  G.  Dun  &  Co.,  18  Federal  Reporter 
(1882),  214. 


PRIVILEGED   PUBLICATIONS.  207 

the  plaintiff  the  burden  of  proving  actual  malice  or  per- 
sonal ill  will.  The  law  upon  the  subject  is  reasonably 
well  settled,  but  its  application  to  particular  cases  is 
often  attended  with  difficulty.  The  privilege  does  not 
grow  out  of  the  fact  that  the  publication  is  made 
through  the  columns  of  a  newspaper,  for  members  of 
the  newspaper  profession  do  not  enjoy  any  immunities 
which  are  not  equally  shared  by  every  individual. 
Writers  for  the  press  are,  however,  generally  allowed 
greater  latitude  by  juries.  The  press  has  constantly 
sought  to  secure  greater  freedom  for  itself,  in  view  of 
the  impossibility  for  reporters  and  editors  to  verify  all 
matters  of  news  during  the  short  interval  before  the 
paper  goes  to  press ;  but  the  courts  have  resisted  all 
attempts  to  extend  the  limits  of  privilege.  It  is  only 
through  the  channel  of  legislation  that  any  material 
advance  can  be  made. 


2o8  NEWSPAPER   LIBEL. 


CHAPTER   VIII. 

POLITICAL      LIBELS. 

Among  the  various  publications  which  are  protected 
by  the  law  of  privilege,  as  stated  in  the  preceding 
chapter,  are  those  respecting  public  men  and  candi- 
dates for  political  office.  To  receive  the  benefit  of  this 
protection,  the  publication  must  be  made  without  actual 
malice  ;  it  must  be  fair  and  temperate,  and  the  motives 
and  conduct  of  persons  under  discussion  must  not  be 
wantonly  impugned.  It  is  no  defence  that  the  writer 
believed  his  charges  to  be  true,  if  they  were  published 
recklessly  and  without  reasonable  grounds;  whereas,  if 
the  charges  are  based  upon  some  foundation  in  fact, 
written  in  a  tone  of  moderation,  and  published  in  good 
faith,  the  publication  is  privileged,  even  though  it  con- 
tains false  imputations  upon  the  integrity  of  persons 
whose  conduct  is  being  considered.1 

Only  the  public  conduct  of  a  public  man  may  be  dis- 

1  In  Pennsylvania,  under  the  constitution  of  1874  (art.  I.,  sec  7),  where  the 
publication  relates  "  to  the  official  conduct  of  officers  or  men  in  public  capacity, 
or  to  any  other  matter  proper  for  public  investigation  or  information,"  it  is  not 
necessary,  in  a  criminal  case,  to  prove  the  truth  of  the  charge  in  defence,  pro- 
vided the  defendant  is  guilty  of  no  malice  or  neglect.  See  Commonwealth  v.  W. 
M.  Singerly  (Philadelphia  Record),  15  Philadelphia  Reports  (1880,368.  The 
Revised  Statutes  of  Maine  (chap.  129,  sec.  4)  provide  that  the  truth  shall  be  a 
complete  justification  in  criminal  prosecutions  for  "publications  relative  to  the 
official  conduct  of  men  in  public  capacities,  or  the  qualification  of  candidates  for 
popular  suffrages,  or  where  the  matter  published  is  proper  for  public  informa- 
tion." In  other  prosecutions  for  libel  in  that  State,  the  truth  is  only  a  justifica- 
tion where  a  malicieus  motive  for  the  publication  is  not  shown  to  exist. 


POLITICAL   LIBELS. 


209 


cussed  under  this  protection,  and  the  critic  must  not 
attack  his  private  character  or  follow  him  into  his 
domestic  life.  Such  is  the  rule  as  generally  laid  down; 
but,  as  stated  by  Judge  Cooley  in  his  work  on  "  Consti- 
tutional Limitations "  (p.  440),  "  the  radical  defect 
in  this  rule  consists  in  its  assumption  that  the  private 
character  of  a  public  officer  is  something  aside  from, 
and  not  entering  into  or  influencing,  his  public  con- 
duct." It  would  seem  that  the  private  character  and 
conduct  of  a  public  officer  or  candidate  are  very  ma- 
terial in  determining  his  fitness  for  office,  but  learned 
jurists  have  undertaken  to  draw  the  distinction  here 
made. 

Despotic  governments  are  always  intolerant  of  crit- 
icism. The  Court  of  Star  Chamber  punished  political 
discussion  with  especial  severity.  In  1631,  "Wrennum, 
for  traducing  and  scandalizing  the  Lord  Chancellor 
Bacon,  in  a  book  delivered  to  the  King,  was  sentenced 
by  that  court  to  be  perpetually  imprisoned,  to  pay  a 
fine  of  £1,000,  to  be  twice  pilloried,  and  to  lose  both 
his  ears.  Leighton,  for  his  publication,  intituled,  '  An 
Appeal  to  Parliament,  or  Sion's  Plea  against  Prelacy,' 
was  sentenced  to  pay  a  fine  of  £10,000,  to  be  whipped 
at  the  pillory  twice,  to  lose  both  his  ears,  to  have  his 
nose  slit  and  face  branded,  and  to  be  imprisoned  in  the 
Fleet  during  life."  l  With  the  gradual  growth  of  popu- 
lar liberty  in  England,  however,  the  right  of  free  dis- 
cussion of  political  affairs  became   better  established. 

1  Folkard's  Starkie  on  Slander  and  Libel,  p.  61.  In  contrast  with  the  intol- 
erance of  an  arbitrary  monarchy  stands  the  intolerance  of  a  theoretically  perfect 
republic;  thus  Sir  Thomas  More,  in  his  "Utopia,"  makes  the  discussion  of 
political  affairs  punishable  with  death,  for  the  reason  that  any  change  in  the 
nature  of  the  government  would  be  a  change  for  the  worse.  (Folkard's  Starkie, 
P-  39-) 


210  NEWSPAPER   LIBEL. 

When  the  American  colonies  united  under  a  republican 
form  of  government,  the  writers  for  the  press  in  this 
country  Considered  all  restraints  removed,  and  for  a 
time  the  acts  and  motives  of  political  opponents  were 
attacked  with  a  degree  of  bitterness  which  has  never 
since  been  equalled.  "Nothing  in  the  history  of  the 
time  is  so  striking  as  its  coarseness  and  cruelty,  its 
venomous  vigor  of  invective,  its  contempt  for  all  that 
should  be  sacred  in  political  warfare  and  in  private  life. 
.  .  .  Editors  exchanged  fraternally  even  more  touching 
amenities,  so  that  suits  for  slander,  —  wherein,  some- 
times, the  defendant  had  only  to  read  aloud  in  court 
the  plaintiff's  own  writings  to  be  acquitted,  —  street 
brawls  with  fists  and  pistols,  duels,  and  murders,  were 
not  at  all  infrequent."1 

An  instance  of  the  bitter  invective  of  the  party  press 
of  the  time  is  afforded  in  the  columns  of  the  Aurora, 
a  leading  Republican  paper  published  in  Philadelphia 
by  Benjamin  Franklin  Bache,  a  nephew  of  Benjamin 
Franklin.  March  5,  1797,  just  after  the  retirement  of 
Washington  from  the  executive  chair,  the  Aurora  pub- 
lished the  following  regarding  the  distinguished  ex- 
President:  — 

The  man  who  is  the  source  of  all  the  misfortunes  of  our 
country  is  this  day  reduced  to  a  level  with  his  fellow-citiz-ens, 
and  is  no  longer  possessed  of  power  to  multiply  evils  upon 
the  United  States.  If  ever  there  was  a  period  of  rejoicing, 
this  is  the  moment.  Every  heart  in  unison  with  the  freedom 
and  happiness  of  the  people  ought  to  beat  high  with  exulta- 
tion that  the  name  of  Washington  from  this  clay  ceased  to  give 
a  currency  to  political  iniquity  and  to  legalized  corruption. 

1  Benjamin  Ellis  Martin  on  the  "  Transition  Period  of  the  American  Press," 
in  the  Magazine  of  American  History,  April,  1887. 


POLITICAL   LIBELS.  211 

Philadelphia  was  at  that  time  the  capital  of  the  Union, 
and  the  residence  of  many  men  who  had  fought  under 
Washington  in  the  Revolution.  A  party  of  these  veter- 
ans, angry  at  the  article  published  in  the  Awora,  attacked 
the  office  of  the  paper,  threw  its  type  into  the  street,  and 
otherwise  expressed  their  indignation.1 

The  bitter  hostility  of  the  opposition  newspapers  led, 
in  1798,  to  the  enactment  by  Congress  of  the  Alien  and 
Sedition  Laws.  The  Sedition  Law  was  designed  to  curb 
the  license  of  the  party  press,  but  its  effect  was  to  excite 
still  greater  hostility  in  the  Republican  party,  and  even 
to  estrange  some  of  the  newspaper  writers  among  the 
Federalists.  There  were  about  two  hundred  newspa- 
pers in  the  country  at  that  time,  and  many  of  the  editors 
were  aliens  themselves,  —  political  exiles  and  emissaries 
of  foreign  governments.  The  legislatures  of  Virginia 
and  Kentucky  declared  the  Alien  and  Sedition  Laws 
unconstitutional,  but  the  administration  proceeded  to 
enforce  them  with  the  utmost  vigor. 

The  first  fruit  of  the  Sedition  Law  was  the  prosecution 
of  Matthew  Lyon,  a  member  of  Congress,  for  the  publi- 
cation in  the  Vermont  Journal  of  a  letter  written  with 
intent  "to  stir  up  sedition,  and  to  bring  the  President 
and  government  of  the  United  States  into  contempt.'' 
The  letter  was  written  in  Philadelphia,  July  7,  1798,  one 
week  before  the  Sedition  Law  was  passed,  but  it  was  not 
published  in  Windsor,  Yt.,  until  July  23,  1798,  and  ac- 
cordingly came  under  the  statute.  In  this  letter  was 
used  the  following  language  regarding  the  administration 
of  John  Adams  :  — 

As  to  the  Executive,  when  I  shall  see  the  efforts  of  that 
power  bent  on  the  promotion  of  the  comfort,  the  happiness, 

1  Hudson's  Journalism  in  the  United  States,  p.  210, 


212  NEWSPAPER   LIBEL. 

and  accommodation  of  the  people,  that  Executive  shall  have 
my  zealous  and  uniform  support ;  but  whenever  I  shall,  on 
the  part  of  the  Executive,  see  every  consideration  of  the 
public  welfare  swallowed  up  in  a  continual  grasp  for  power, 
in  an  unbounded  thirst  for  ridiculous  pomp,  foolish  adula- 
tion, and  selfish  avarice  ;  when  I  shall  behold  men  of  real 
merit  daily  turned  out  of  office,  for  no  other  cause  but  inde- 
pendency of  sentiment ;  when  I  shall  see  men  of  firmness, 
merit,  years,  abilities,  and  experience,  discarded  in  their  ap- 
plications for  office,  for  fear  they  possess  that  independence, 
and  men  of  meanness  preferred  for  the  ease  with  which 
they  take  up  and  advocate  opinions,  the  consequence  of 
which  they  know  but  little  of — when  I  shall  see  the  sacred 
name  of  religion  employed  as  a  state  engine  to  make  man- 
kind hate  and  persecute  one  another,  I  shall  not  be  their 
humble  advocate. 

For  the  publication  of  this  letter,  and  of  another, 
said  to  have  been  written  by  a  diplomatic  character  in 
France,  Mr.  Lyon  was  indicted,  October  5,  1798,  arrested 
on  a  bench  warrant,  and  tried  October  7,  at  Vergennes, 
in  the  Circuit  Court  of  the  United  States  for  the  district 
of  Vermont.  He  pleaded  the  unconstitutionality  of  the 
Sedition  Law,  but  the  plea  was  rejected  by  the  Court. 
He  then  undertook  to  prove  the  truth  of  the  publication, 
but,  after  deliberating  an  hour,  the  jury  brought  in  a 
verdict  of  guilty,  and  the  prisoner  was  sentenced  to  four 
months'  imprisonment  and  to  pay  a  fine  of  $1,000  and 
costs.1  Mr.  Lyon  entered  Congress  in  1797,  and  while 
confined  in  jail  under  the  Sedition  Law,  was  re-elected. 
Upon  his  return  to  Philadelphia,  at  the  assembling  of 
Congress  in  1799,  a  motion  was  made  to  expel  him  on 
account  of  the  seditious  libel  which  he  had  published ; 

1  United  States  v.  Lyon,  Wharton's  State  Trials  of  the  United  States,  p.  333. 
'the  subject  of  seditious  libels  is  considered  in  Chap.  III.    Stcantf,  pp.  19  and  74. 


POLITICAL   LIBELS. 


213 


but,  though  forty-nine  members  voted  in  favor  of  the  mo- 
tion and  only  forty-five  against  it,  the  motion  was  lost, 
the  necessary  two-thirds  not  having  voted  in  favor  of 
expulsion.  Mr.  Lyon  afterward  removed  to  Kentucky, 
and  represented  a  district  of  that  State  in  Congress  for 
four  terms.  He  died  in  1822,  in  his  seventy-eighth  year. 
Eighteen  years  later  (July  4,  1840)  tardy  justice  was 
done  him,  when  Congress  passed  an  act  repaying  to  his 
heirs,  with  interest,  the  fine  which  he  had  paid  in  1798. 

The  Sedition  Law  expired  by  its  own  limitation,  March 
3,  1 80 1.  A  large  proportion  of  the  suits  and  prosecu- 
tions for  libel  in  this  country  have  ever  since  been  a 
result  of  political  controversy. 

"  The  fact  of  one  being  a  candidate  for  an  office  or 
for  employment,  in  many  instances  affords  a  license  or 
legal  excuse  for  publishing  language  concerning  him  as 
such  candidate,  for  which  publication  there  would  be 
no  legal  excuse  did  he  not  occupy  the  position  of  such  a 
candidate.''1  Isaac  Marks  was  city  treasurer  of  Man- 
kato,  Minn.,  and  a  candidate  for  re-election.  The 
Mankato  Free  Press,  April  2,  1880,  contained  a  charge 
that  Mr.  Marks  had,  as  treasurer,  failed  to  account  for 
certain  city  funds.  The  Court  held  that  although  the 
charge  was  not  in  fact  true,  it  was  nevertheless  privileged 
if  made  in  good  faith,  for  the  reason  that  free  discussion 
in  the  press  of  the  fitness  of  candidates  for  elective 
offices  is  essential  to  good  government.^ 

A  mayor  was  to  be  elected  in  San  Antonio,  Tex., 
January  8,  1883.  On  the  day  before  the  election,  the 
San  Antonio  Express  published  the  following  regarding 
one  of  the  candidates  :  — 

1  Townshend  on  Slander  and  Libel,  p.  287. 
-  Marks  v.  Baker  et  a/.,  28  Minn.  162. 

10* 


2i4  NEWSPAPER   LIBEL. 

As  Mr.  Copeland  is  a  candidate  for  mayor,  and  as  that 
officer  has  the  general  management  of  our  finances,  it  is  a 
legitimate  question  for  the  people  to  ask  how  he  has  man- 
aged affairs  of  others  heretofore  placed  in  his  hands.  .  .  . 
In  1S81,  T.  P.  Aplin  died,  and  Mr.  Copeland  was  appointed 
administrator  of  his  little  estate,  the  total  value  of  which 
was  $2,579.90.  The  administration  closed  November  23d, 
and  the  report  shows  the  total  expense  of  administering  on 
the  estate  of  $2,579.90.  to  have  been  $882.28,  and  the  ad- 
ministrator was  allowed  to  retain  the  balance  of  the  estate, 
$1,777.62,  subject  to  the  order  and  instruction  of  the  heirs. 
What  such  retention  cost  the  heirs  we  do  not  know,  but, 
from  the  charges  of  administration,  it  was  doubtless  a  pretty 
heavy  sum.  .  .  . 

Mr.  Copeland  thereupon  brought  suit  for  $25,000 
against  the  Express,  and  recovered  a  verdict  for  $2,500. 
In  setting  the  verdict  aside,  and  ordering  a  new  trial, 
Judge  Watts,  of  the  Supreme  Court,  said  :  "  It  may  be 
asserted  as  a  sound  principle,  and  one  supported  by 
authority,  that  when  a  person  consents  to  become  a 
candidate  for  public  office  conferred  by  popular  elec- 
tion, he  should  be  considered  as  putting  his  character 
in  issue  so  far  as  respects  his  qualification  for  the 
office."  1 

But  there  is  a  limit  to  the  political  writer's  privilege 
in  commenting  upon  the  fitness  of  candidates  for  office, 
and  this  limit  varies  greatly  in  different  States  and  dif- 
ferent courts.  "His  talents  and  qualifications  mentally 
and  physically  for  the  office  which  he  asks  at  the  hands 
of  the  people  may  be  freely  commented  on  in  publica- 
tions in  a  newspaper,  and  though  such  comments  be 
harsh  and  unjust,  no  malice  will  be  implied,  for  these 
are  matters  of  opinion,  of  which  the  voters  are  the  only 

1  Copeland  v.  the  Express  Printing  Co.,  64  Tex.  354. 


POLITICAL   LIBELS.  215 

judges  ;  but  no  one  has  a  right  by  a  publication  to  im- 
pute to  such  a  candidate,  falsely,  crimes,  or  publish 
allegations  affecting  his  character  falsely."  Such  was 
the  language  of  the  Supreme  Court  of  Appeals  of  West 
Virginia  in  the  case  of  James  W.  Sweeney  v.  Lewis 
Baker  et  a/.,  of  the  Wheeling  Daily  Register,  decided  in 
1878. l  Mr.  Sweeney  had  recovered  a  verdict  for  $8,000 
in  the  Circuit  Court,  and  the  judgment  was  affirmed  by 
the  higher  tribunal.  The  libels  upon  which  the  suit 
was  based  were  the  following  :  — 

The  laboring  men  are  taught  to  believe  that  a  certain  can- 
didate, who  never  did  an  honest  day's  work,  is  their  especial 
champion  and  friend.  ...  A  professional  gambler,  he 
preaches  morality;  and  a  confessed  ignoramus,  he  argues 
that  intelligence  should  control  the  election. — [Oct.  15,  1873. 

Let  the  people  of  Ohio  county  not  select  a  representative 
from  the  prize  ring  or  gambling  den.  .  .  .  Club-law  is  what 
we  may  expect  from  the  Jimsweeney  style  of  legislation. 
.  .  .  Would  you  select  a  man  to  make  laws,  whom  you  would 
kick  out  of  your  house,  and  would  not  trust  in  your  hen- 
coop ?  Certainly  not.  And  yet  by  staying  at  home  to-day 
you  give  half  a  vote  to  just  such  a  man.  Goto  the  polls 
and  vote  for  Pannell.  ...  It  is  as  much  the  duty  of  the 
citizen  to  vote  against  Jimsweeney  as  it  would  be  to  deo- 
dorize against  the  cholera.  .  .   .  — [Oct.  16,  1S73. 

In  New  York  the  courts  have  been  especially  illiberal 
in  the  construction  of  the  law  of  privilege,  in  so  far  as 
it  relates  to  publications  affecting  public  officers  and 
candidates  for  office.  The  New  York  Iribune,  Septem- 
ber 26,  i860,  published  regarding  Dewitt  C.  Littlejohn, 
ex-speaker  of  the  Assembly,  that  he  was  "  prominent  fn 
the  corrupt  legislation  of  last  winter."  The  Supreme 
Court  held  that  the  language  was  libellous,  and  that  it 

1  13  West  Va.184. 


2i6  NEWSPAPER   LIBEL. 

was  rot  privileged,  although  the  ex-speaker  was  a  can- 
didate for  re-election  to  the  Assembly.1  And  in  an 
earlier  case  in  the  same  State  it  was  held  that  a  publi- 
cation affecting  the  character  of  a  candidate  for  public 
office  is  not  a  privileged  publication,  relieving  the  de- 
fendants from  the  necessity  of  proving  the  truth  of  the 
charges.9  In  this  case  judgment  for  $1,400  was 
affirmed,  the  libel  consisting  in  the  following  language, 
published  in  the  New  York  American,  August  25,  1824  :  — 

Lieutenant-Governor  Root. — .  .  .  We  speak  only 
what  we  saw,  and  as  it  is  a  matter  of  some  public  concern 
that  the  presiding  officer  of  our  Senate  should  not  continue  to 
be  what  Mr.  Root  is.  .  .  .  Lieutenant-Governor  Root,  hold- 
ing on  to  each  arm  of  his  chair,  looked  round  with  inflamed 
face,  with  bloodshot  eyes  and  half-open  mouth,  and  with 
an  expression  altogether  so  stolid  and  drunken  as,  in  any 
other  situation  and  under  other  circumstances,  could  not  have 
failed  to  excite  the  derision  of  all  present.  .  .  .  An  object, 
from  his  appearance  and  manner,  we  will  venture  to  say,  of 
loathing  and  disgust  to  every  unprejudiced  man  among 
them :  unwashed,  unshaven,  haggard,  the  tobacco  juice 
trickling  from  the  corners  of  his  mouth,  to  be  wiped  away 
by  his  coat  sleeve  ;  with  unsteady  footing,  this  second  officer 
of  the  great  State  of  New  York  commenced  his  address  to 
the  Senate.  .  .  . 

Chancellor  Walworth,  in  rendering  the  opinion  of  the 
Court  in  this  case,  said  :  "  It  is,  however,  insisted  that 
this  libel  was  a  privileged  communication.  If  so,  the 
defendants  were  under  no  obligation  to  prove  the  truth 
of  the  charge,  and  the  party  libelled  had  no  right  to 
recover  unless  he  established  malice  in  fact,  or  showed 
that  the  editors  knew  the   charge   to  be   false.      The 

1  Littlejohn  v.  Greeley,  13  Abbotts'  Practice  Reports,  41. 
-  Root  v.  King  et  al.,  7  Cowen,  613;  4  Wendell,  113. 


POLITICAL   LIBELS. 


217 


effect  of  such  a  doctrine  would  be  deplorable.  .  .  . 
The  only  safe  rule  to  adopt  in  such  cases  is  to  permit 
editors  to  publish  what  they  please  in  relation  to  the 
character  and  qualifications  of  candidates  for  office, 
but  holding  them  responsible  for  the  truth  of  what  they 
publish."  The  Supreme  Court  of  Texas,  in  the  case  of 
Copeland  v.  the  Express  Printing  Company,  cited  above, 
remarks:  "In  New  York,  comments  and  discussions 
relating  to  public  officers  and  candidates  for  official 
positions  are  placed  upon  the  same  footing  as  comments 
and  discussions  concerning  the  private  character  of  other 
persons.  The  tendency  in  the  English  courts  is  more 
liberal  in  protecting  the  freedom  of  the  press,  and  the 
holding  there  is  in  accord  with  the  conclusions  an- 
nounced in  this  opinion,  and  which  we  believe  to  be 
well  founded  in  reason,  and  more  nearly  in  accord  with 
constitutional  liberty  and  free  republican  institutions."  ' 

A  Florida  court  ruled  that  it  is  libellous  per  se,  and 
not  privileged,  falsely  to  publish  of  a  candidate  for  an 
elective  political  office  that  he  is  "  a  retail  liquor  dealer, 
and,  we  are  informed,  is  under  indictment  for  not  can- 
celling the  stamps  on  empty  liquor  casks,  the  contents 
of  which  he  had  sold."  2 

Daniel  Wilcox,  of  the  Quincy,  111.,  Whig,  a  political 
opponent  of  Frederick  Rearick,  who  was  a  candidate 
for  the  office  of  police  magistrate,  published  charges 
against  Mr.  Rearick,  April  15,  1875,  alleging  dishonesty 
and  corruption,  and  asserting  that  if  elected  he  would 
improve  "  every  opportunity  for  peculation  that  might,  by 

1  The  rule  laid  down  in  the  case  of  Root  r>.  King  et  al.  is  sharply  criticised  in 
an  article  on  "  Newspaper  Privilege,"  by  Gideon  D.  Bantz,  of  St.  Louis,  in  the 
( ',  ntral  Law  Journal  for  July  31,  1885. 

-  J.  F.  Townsend's  adm'x  v.  JonesH  Varnum  &  Co.  (Jacksonville  Florida 
Times-Union,  March  20,  1883),  21  Fla.  431. 


2i8  ■      NEWSPAPER   LIBEL. 

possibility,  attach  to  the  office."  Mr.  Rearick  brought 
suit,  and  was  awarded  a  verdict  for  twenty-five  dollars, 
but  he  appealed  on  account  of  the  inadequacy  of  the 
damages.  The  Supreme  Court  granted  a  new  trial, 
holding  that  evidence  that  the  libel  was  published  amid 
the  excitement  of  a  political  campaign  could  not  be 
received  in  mitigation  of  damages,  and  remarking  that 
"  the  character  and  reputation  of  appellant  was  as 
sacred  and  as  much  entitled  to  protection  when  a  can- 
didate for  office  as  at  any  other  time."  1 

A  fusion  candidate  for  Congress,  in  Michigan,  in 
1882,  was  charged  by  the  Big  Rapids  Current  with 
forgery  and  with  defrauding  the  depositors  in  a  bank. 
He  brought  suit  for  libel,  and  the  Supreme  Court 
passed  upon  the  question  of  privilege  involved.  "  To 
hold  that  false  charges  of  a  defamatory  character," 
said  Judge  Champlin,  "  made  against  a  candidate  are 
privileged  as  matters  of  law,  if  made  in  good  faith, 
and  that  the  party  making  them  is  absolutely  shielded 
against  liability,  it  seems  to  me,  is  a  most  pernicious 
doctrine.  It  would  deter  all  sensitive  and  honorable 
men  from  accepting  the  candidacy  to  office."  The 
Court  held  that  evidence  that  the  charges  were  made 
in  an  honest  belief  in  their  truth,  after  proper  investi- 
gation, would  tend  to  mitigate  the  damages  recover- 
able.9 Thomas  M.  Cooley,  one  of  the  foremost  law 
text-writers  in  this  country,  and  for  twenty  years  a  judge 
and  chief  justice  of  the  very  court  whose  opinion  Judge 
Champlin  was  reading,  does  not,  however,  regard  as 
"  most  pernicious  "  the  doctrine  to  which  Judge  Champ- 

1  Rearick  v.  Wilcox,  81  III.  77. 

2  Stephen  Bronson  v.  Valorus  W.  Bruce,  59  Mich.  (1886),  467.  In  the  later 
case  of  Wheaton  v.  Beecher  (Detroit  Evening  News),  33  Northwestern  Reporter 
(1887),  503,  the  Court  affirmed  the  same  doctrine. 


POLITICAL   LIBELS. 


219 


in  referred.  In  his  work  on  "Torts"  (page  217),  he 
concludes  a  discussion  of  the  subject  in  these  words  : 
"  There  should,  consequently,  be  freedom  in  discuss- 
ing in  good  faith  the  character,  the  habits,  and  mental 
and  moral  qualifications  of  any  person  presenting  him- 
self, or  presented  by  his  friends,  as  a  candidate  for 
public  office,  either  to  the  electors  or  to  a  board  of 
officers  having  power  of  appointment." 

The  law  of  privilege  is  based  upon  the  principle  that 
any  publication,  made  in  good  faith,  is  lawful  when  it  is 
necessary  for  the  protection  of  private  interests  or  of 
the  public  welfare.  Therefore  the  immunity  granted  by 
this  principle  of  law  is  sacrificed  when  the  publication 
is  given  greater  publicity  than  the  occasion  requires. 
Thus  where  an  officer  is  to  be  elected  by  popular  suf- 
frage, a  publication  regarding  the  qualifications  of  a 
candidate  may  be  made  through  the  medium  of  a  news- 
paper, for  by  no  other  means  can  the  electors  be  readily 
reached  ;  but  where  an  appointment  to  office  is  to  be 
made  by  a  board  of  limited  number,  communications 
alleging  the  unfitness  of  a  candidate  should  be  made  to 
the  appointing  power  alone,  and  not  to  the  public  at 
large.  The  New  York  Herald  published  the  following, 
Aprilii,  1845,  regarding  James  Hunt,  who  was  a  can- 
didate for  a  police  justiceship  :  — 

Who  shall  be  Special  Justice  of  Police  ?  —  ... 
Was  not  he  the  man  who,  in  the  discharge  of  his  duty, 
arrested  a  poor  drunken  woman,  and,  for  some  expression 
of  hers,  beat  her,  like  a  noble-hearted  Brutus,  with  a  whale- 
bone cane?  Did  he  not,  on  the  trial  of  the  cause, admit  that 
he  had  struck  the  poor  creature,  and  said  that  such  was  his 
nature  that  he  believed  if  he  was  placed  in  the  same  position 
he    should  do  it  again  ?     Did   he    not    tell  his    honor,    the 


220  NEWSPAPER   LIBEL. 

recorder,  in  the  most  positive  manner,  that  he  was  both  an 
attorney  and  a  counsellor  in  the  Superior  Court  or  the  Court 
of  Common  Pleas,  and  was  it  not  proved  false  ?  Did  he 
not,  in  the  County  Court,  solemnly  declare  that  he  did  not 
know  the  result  of  his  own  trial,  and  refer  the  counsel  to  the 
reporters  for  information,  declaring  that  they  knew  more  of 
it  than  he  did  ?     Can  these  things  be  overlooked?  .  .  . 

It  was  held  by  the  Court  of  Appeals  that  this  article, 
being  published  to  the  world  at  large,  was  not  privi- 
leged. The  power  of  appointment  of  the  police  justice 
was  vested  in  the  common  council,  and  the  communi- 
cation should  have  been  made  to  that  body  alone.1  A 
verdict  for  $1,000  was  affirmed. 

Under  the  same  principle  of  law  an  action  for  libel 
was  maintained  against  James  E.  Scripps,  of  the  De- 
troit Eveni?ig  News,  by  Dr.  George  B.  Foster,  one  of  the 
city  physicians  of  Detroit.2  The  libellous  article  was, 
in  part,  as  follows  :  — 

James  Connelly  .  .  .  died  last  night  from  the  effects  of 
an  operation  performed  upon  him  some  two  weeks  ago  by 
Dr.  Foster.  The  operation  was  vaccination  ;  the  instrument, 
the  trocar.  .  .  .  The  common  council  should  immediately 
take  this  matter  in  hand.   .   .   . 

In  the  opinion  of  the  Court,  if  the  editor  thought  that 
the  council  should  take  the  matter  in  hand,  he  should 
have  brought  it  to  the  attention  of  the  council  alone,  or 
else  have  been  prepared  to  prove  the  truth  of  the  charge 
which  the  article  implied. 

Law  writers  have  sometimes  questioned  the  sound- 
ness of  the  principle  which  holds  that  newspaper  publi- 
cations respecting  candidates  for  appointive  public 
offices  are  not  privileged.     It  is  difficult,  indeed,  to  see 

1  Hunt  7'.  Bennett,  4  E.  D.  Smith's  Reports,  647;  19  N.  Y.  173. 

2  Foster  v.  Scripps,  39  Mich.  (1878),  376. 


POLITICAL   LIBELS. 


2  2  1 


sufficient  ground  for  the  distinction  between  candidates 
for  appointive  and  for  elective  offices.  In  both  cases 
the  officers  are  chosen  by  the  people,  only  in  the  former 
case  the  people  do  not  act  directly,  but  by  their  repre- 
sentatives. There  are  none  too  many  safeguards  for 
good  government ;  and  often  the  members  of  boards 
vested  with  the  power  to  appoint  public  officers  would 
feel  greater  responsibility  for  the  character  and  ability 
of  men  appointed  by  them  if  they  were  conscious  that 
the  public,  their  constituents,  had  been  informed  whether 
the  successful  candidates  were  worthy  of  the  offices  con- 
ferred upon  them. 

The  same  privilege  which  protects  publications  re- 
garding candidates  for  public  offices  within  the  limits 
above  defined,  is  extended  also  to  publications  respect- 
ing public  officials,  and  for  the  same  reason  —  that  the 
cause  of  good  government  requires  freedom  in  the  dis- 
cussion of  affairs  of  interest  to  the  general  public  The 
following  article  appeared  in  the  Detroit  Post  and  Trib- 
une, June  23,  1S81,  concerning  John  Miner,  a  police 
justice  of  that  city  :  — 

More  of  Miner. — A  few  days  since  a  complaint  was 
made  before  Justice  Miner  against  a  Chinaman.  Without 
the  assent  of  the  complainant,  Miner  inserted  the  name  of 
a  second  Chinaman,  against  whom  no  complaint  was  made, 
and  whom  no  one  charged  with  being  connected  with  the 
offence.  At  the  examination  afterwards  held,  Miner  ad- 
mitted that  he  inserted  the  second  name  on  his  own  motion, 
and  though  the  evidence  of  the  complainant  completely  ex- 
onerated the  second  man,  and  it  was  shown  that  he  was  not 
present  at  the  commission  of  the  alleged  offence,  Miner 
bound  him  over  for  trial  under  heavy  bonds.  Judge  Swift, 
on  the  facts  coming  to  his  knowledge,  released  this  second 
man.     There  is  no  accounting  for  Miner's  action.     In  this 


222  NEWSPAPER   LIBEL. 

case  it  was  an  inexcusable  outrage.  If  he  would  enforce  the 
law  upon  the  multitude  of  offenders  brought  before  him.  if 
he  would  discharge  his  duty  on  the  complaints  for  violating 
the  liquor  laws  and  gambling  laws,  people  would  be  more 
lenient  in  their  judgment  of  him.  But  he  does  not,  and  ap- 
parently will  not.  Instead  of  that,  he  turns  upon  a  helpless 
Chinaman,  who  has  no  political  influence  to  sustain  him  and 
much  prejudice  to  combat.  It  was  a  contemptible  act  and  a 
cowardly  act.   .   .   . 

In  setting  aside  judgment  in  favor  of  Justice  Miner, 
obtained  in  the  Superior  Court,  Judge  Cooley,  of  the 
Supreme  Court,  used  the  following  language  :  "  Few 
duties  can  be  plainer  than  to  challenge  public  atten- 
tion to  the  official  disregard  of  the  principles  which 
protect  public  and  personal  liberty.  I  know  of  noth- 
ing more  likely  to  encourage  the  license  of  a  dissolute 
press  than  to  establish  the  principle  that  the  discussion 
of  matters  of  general  concern,  involving  public  wrongs, 
and  the  publication  of  personal  scandal,  come  under 
the  same  condemnation  in  the  law ;  for  this  inevitably 
brings  the  law  itself  into  contempt,  and  creates  public 
sentiment  against  its  enforcement."  * 

A  claim  of  privilege  was  made  on  behalf  of  the  fol- 
lowing article,  published  in  the  Pittsburg  Post,  Feb- 
ruary i6,  1874  :  — 

An  IMPOSTOR.  —  A  man  who  resides  in  Allegheny  City, 
named  W.  D.  Moore,  and  who  subscribes  himself  as  chair- 
man of  the  Democratic  County  Committee,  appeared  in 
yesterday's  Sunday  papers  in  a  card  addressed  to  the  Demo- 
cratic voters  of  the  city  of  Pittsburg,  for  the  writing  of 
which  he  was  paid  a  fee  by  the  ring,  and  the  publication  of 
which  was  paid  for  out  of  the  corruption  fund  of  the  Mc- 
Carthy-Magee-Snodgrass  ring,  in  which   the   impudent  im- 

1  Miner  v.  the  Detroit  Post  and  Tribune  Co.,  49  Mich.  358. 


POLITICAL   LIBELS.  223 

postor  attempts  to  dictate  to  the  Democratic  voters  of 
this  city.  This  man  Moore  is  in  the  pay  of  the  ring,  and 
the  fact  does  not  surprise  us  in  the  least  when  we  reflect 
that  he  has  descended  from  the  high  calling  of  a  clergyman 
to  the  recognized  champion  and  professional  defender  of 
prostitutes  and  the  lowest  grade  of  criminals  who  throng 
the  audience  halls  of  our  police  and  criminal  courts.  .  .  . 

James  P.  Barr  et  al.,  of  the  Post,  in  defending  the 
suit  for  libel  brought  against  them  by  Mr.  Moore, 
claimed  that  Mr.  Moore  was  chairman  of  the  county 
committee  of  a  political  party  during  a  bitter  campaign, 
and  tint,  inasmuch  as  the  alleged  libel  referred  to  his 
official  conduct,  it  was  privileged,  as  being  legitimate 
discussion  of  a  public  question.  The  Supreme  Court, 
however,  ruled  that  the  article  was  libellous,  and  that  it 
was  not  privileged.1  A  verdict  in  favor  of  the  plaintiff 
for  $10,000  was  set  aside  on  the  ground  that  it  was 
excessive  ;  a  second  verdict  for  $3,000  was  set  aside  on 
the  ground  that  evidence  had  been  wrongfully  admit- 
ted, and  finally  the  case  was  settled  out  of  court  by  the 
defendants  paying  the  plaintiff's  costs. 

Joseph  H.  Farrow  was  a  State  senator  in  Maryland. 
The  Hagerstown  Herald  and  Torchlight,  in  the  course  of 
an  article  on  legislative  affairs,  February  8,  i8S-\  pub- 
lished charges  against  Senator  Farrow,  stating  that 
although  elected  as  a  Republican,  he  was  under  the 
control  of  a  corrupt  Democratic  ring;  that  he  aided 
the  defeat  of  a  bill  for  repealing  the  act  authorizing 
the  publication  of  the  laws  in  newspapers,  and  by  so 
doing  proved  a  traitor  to  his  party ;  and  that  he  had 
been  given  a  State  contract  to  furnish  stone  because  he 
"  had  a  vote  to  give  in  the  Senate."     The  article  con- 

1  Moore  v.  Barr  et  al.,  87  Pa.  State  Reports,  385. 


224  NEWSPAPER   LIBEL. 

eluded  as  follows :  "  The  fruits  of  the  contract  to  fur- 
nish stone  to  lengthen  locks  on  the  canal  are  appearing. 
Look  out  for  more."  In  sustaining  a  verdict  for  $3,000, 
recovered  in  the  lower  court  against  Peter  Negley*?/  at., 
of  the  Herald  and  Torchlight,  the  Court  of  Appeals  said  : 
"If  one  goes  out  of  his  way  to  asperse  the  personal 
character  of  a  public  man,  and  to  ascribe  to  him  base 
and  corrupt  motives,  he  must  do  so  at  his  peril,  and 
must  either  prove  the  truth  of  what  he  says,  or  answer 
in  damages  to  the  party  injured.  The  fact  that  one  is 
the  proprietor  of  a  newspaper  entitles  him  to  no  privi- 
lege in  this  respect  not  possessed  by  the  community 
in  general." ' 

It  has  been  held  in  New  York  that  a  true  report  of 
the  proceedings  at  a  public  meeting,  assembled  for  the 
purpose  of  nominating  a  candidate  for  governor,  the 
report  being  signed  by  the  defendant  as  chairman,  and 
published  by  order  of  the  meeting,  is  not  as  such  privi- 
leged.2 Col.  William  Few  was  defeated  in  the  case 
in  question  in  a  suit  for  libel  brought  against  him  by 
Governor  Morgan  Lewis,  the  libellous  article  being  the 
following,  published  in  the  American  Citizen:  — 

We  solemnly  complain  against  the  present  governor,  and 
object  to  his  re-election,  for  his  want  of  attachment  to  Repub- 
lican principles,  and  for  his  having  formed  a  coalition  with 
a  certain  portion  of  our  political  adversaries,  for  the  purpose 
of  retaining  power,  and  dividing  among  themselves  the  prin- 
cipal and  most  lucrative  offices  of  the  State,  .  .  .  for  pursu- 
ing a  system  of  family  aggrandizement,  .  .  .  for  his  attempts 
to  destroy  the  liberty  of  the  press,  by  vexatious  and  repeated 
prosecutions,  while  papers  under  his  own  immediate  influence, 


Farrow  v.  Negley  ft  at.,  60  Md.  177. 

Lewis  v.  Few,  5  Johnson  (1809),  1.     (See  ante,  pp.  193,  194.) 


POLITICAL   LIBELS.       »  225 

or  the  direction  of  his  supporters,  abound  with  infamous,  licen- 
tious, and  almost  unparalleled  scurrility.  .  .  . 

Col.  Few  vainly  maintained  in  his  defence  that  he 
was  acting  under  the  orders  of  a  public  meeting  of 
citizens,  of  which  he  was  chairman,  and  that  the  article 
was  privileged  on  the  ground  that  Governor  Lewis  was 
a  candidate  for  re-election.  The  decision  in  this  case 
has  been  strongly  criticised  by  recent  law  writers,1  but 
it  is  frequently  cited  as  an  authority  in  the  courts. 

A  similar  case  was  more  recently  adjudged  in  Penn- 
sylvania, and  more  liberally.  Amos  Briggs  was,  in 
1882,  a  candidate  for  re-election  as  associate  judge  of 
the  Court  of  Common  Pleas  for  the  county  of  Philadel- 
phia. At  a  public  meeting  of  the  Committee  of  One 
Hundred,  October  16,  1882,  Philip  C.  Garrett,  chair- 
man of  that  committee,  directed  the  secretary  to  read  a 
letter  from  a  certain  reputable  citizen,  in  which  the  fol- 
lowing words  occurred:  "The  Hart  Creek  Sewer  steal 
of  $200,000  was  only  made  possible  by  Judge  Briggs' 
charge  to  the  jury."  Reporters  were  present  at  the 
meeting,  and  the  letter  was  published  at  length  in  the 
newspapers  the  following  day.  Judge  Briggs  brought 
suit  against  Mr.  Garrett  for  libel,  and  showed  in  evi- 
dence that  he  did  not  charge  the  jury  in  the  case  in 
question.  He  was  nonsuited  in  the  Court  of  Common 
Pleas,  on  the  ground  that,  in  the  absence  of  malice,  the 
action  of  Mr.  Garrett  was  privileged,  and  the  judgment 
of  nonsuit  was  affirmed  by  the  full  bench  of  the  Supreme 
Court,  three  of  the  seven  judges  dissenting.  Speaking 
of  the  individual  hardship  suffered  by  Judge  Briggs,  the 
Court  said  :  "This  is  the  sacrifice  which  the  individual 
must  make  for  the  public  good,  just  as   the  soldier  is 

1  Cooley  on  Constitutional  Limitations,  p.  438. 


2  26  *     NEWSPAPER   LIBEL. 

shot  down  in  battle  to  preserve  for  others  the  blessings 
of  free  government."  I  Any  one  of  the  reporters  who 
were  present,  or  the  proprietor  of  any  newspaper  repre- 
sented at  the  meeting,  would  have  enjoyed  the  same 
immunity  as  the  chairman  if  suit  had  been  brought 
against  them  by  Judge  Briggs. 

This  decision  is  sharply  called  in  question  in  the  case  of 
the  State  of  Tennessee  v.  the  Nashville  Banner  Publish- 
ing Company  eta  I?  The  Nashville  Banner,  January  26, 
1885,  in  an  article  entitled  "  The  Tennessee  Tewksbury," 
charged  the  superintendent,  warden,  and  physician  of 
the  penitentiary  with  gross  abuses  and  mismanagement. 
In  the  court  below  the  defendants  were  convicted  and 
severally  fined  fifty-one  dollars.  The  Supreme  Court 
declared  that  neither  the  press  nor  individuals  can  dis- 
cuss the  conduct  or  character  of  officers  and  candidates 
for  office  without  incurring  liability,  civil  or  criminal, 
for  defamatory  utterances  published,  although  such 
publications  may  be  made  without  malice  and  upon 
probable  cause.  Judgment  was  affirmed.  The  rule  here 
laid  down  is  precisely  the  same  which  prevails  in  cases 
where  there  is  no  question  of  privilege  involved. 

Shortly  before  the  presidential  election  in  1868,  some 
department  clerks  from  Washington,  who  were  return- 
ing to  their  homes  in  the  North  for  the  purpose  of  vot- 
ing, were  assaulted  while  passing  through  Baltimore. 
In  its  report  of  this  occurrence,  October  14,  1868,  the 
Baltimore  American  used  the  following  language  :  — 

A  young  man  on  the  Washington  train,  who  is  engaged  in 
selling  papers,  and  who  takes  every  occasion  to  insult  Re- 

1  Briggs  7'.  Garrett,  m  Pa.  State  Reports  (1886),  404.  Judge  Briggs  failed 
to  be  re-elected. 

2  16  Lea,  176. 


POLITICAL   LIBELS.  227 

publican  passengers,  appears  to  have  been  in  collusion  with 
the  ruffians.  On  approaching  the  city,  he  went  around  to 
take  a  vote  of  the  passengers,  the  object  being  evidently  to 
spot  the  Republicans,  that  the  assailants  might  know  who 
were  their  friends  and  who  their  opponents.  The  scheme 
was  successful,  and  on  passing  through  the  city,  an  ex-police 
officer  of  Washington  pointed  out  the  victims  who  had  unwit- 
tingly proclaimed  their  political  predilections  in  favor  of 
Grant  and  Colfax. 

The  libelled  news  agent  was  George  Snyder,  and  he 
brought  suit  against  Charles  C.  Fulton  ct  a/.,  of  the 
American,  for  $10,000.  The  Court  held  that  the  publi- 
cation was  not  privileged,1  and  the  news  agent  was 
awarded  a  verdict  for  $250. 

An  act  regarding  libels  upon  candidates  for  political 
offices  was  passed  by  the  Legislature  of  Minnesota  at 
its  session  in  18S7.  This  act  provides  that  punitive 
damages  shall  not  be  recoverable  against  the  publishers 
of  a  libel  where  it  appears  at  the  trial  that  the  article 
was  published  in  good  faith,  and  that  a  fair  retraction 
was  promptly  published  — 

Provided,  however,  that  the  provisions  of  this  act  shall 
not  apply  to  the  case  of  any  libel  against  any  candidate  for 
a  public  office  in  this  State  unless  the  retraction  of  the  charge 
is  made  editorially  in  a  conspicuous  manner  at  least  three 
days  before  the  election. 

The  Legislature  of  Ontario  passed  a  similar  statute 
two  months  later. 

Political  libels,  as  in  this  chapter  discussed,  are  only 
a  subdivision  of  the  general  class  of  privileged  publi- 
cations treated  in  the  preceding  chapter.  Many  politi- 
cal articles,  of  a  more  or  less  defamatory  character, 
become  the  subject  of  libel  actions  without  the  question 

1  Snyder  v.  Fulton  eta/.,  34  Md.  128, 


228  NEWSPAPER   LIBEL. 

of  privilege  being  raised.  Such  a  case  was  reported 
in  the  Albany  Law  Journal  for  May  26,  1888.  The 
case  resulted  from  an  article  published  by  F.  B. 
Kampf,  of  the  Auglaize  County  Democrat  of  Wapako- 
neta,  Ohio,  regarding  a  person  by  the  name  of  Settlage. 
The  character  of  the  charges  is  sufficiently  indicated 
in  the  opinion  of  the  Court  of  Common  Pleas.  Un- 
fortunately, the  judge  of  that  court  is  entitled  to  more 
distinction  as  a  humorist  than  as  a  jurist,  for  his  ruling 
would  hardly  be  sustained  in  most  courts  of  last  resort. 
The  opinion  was  quoted  as  follows  :  — 

If  defendant  meant  that  plaintiff  was  a  liar  in  its  worst 
sense, —  that  he  is  a  common,  every-day,  all-the-time,  wilful 
and  malicious  liar,  that  he  deliberately  and  designedly  falsi- 
fies in  material  matters  in  all  the  relations  of  life,  in  his 
business,  social,  religious,  and  political  relations, —  the  charge 
\s  per  se  a  libel.  But  if  he  meant  that  he  was  unreliable  in 
a  political  sense,  or  in  a  particular  personal  matter,  or  that 
he  advocated  false  doctrines  in  theology  or  politics,  it  would 
not  be  so.  A  traitor  is  one  who  violates  or  disregards  his 
allegiance.  It  may  mean  a  man  who  commits  treason  by 
betraying  his  country  into  the  hands  of  its  enemies,  or  one 
who  has  thrown  off  his  allegiance  to  a  political  organization. 
To  falsely  charge  the  first  would  be  a  libel,  while  to  charge 
the  latter  would,  in  some  cases,  be  to  exalt,  glorify,  and  pop- 
ularize the  person  charged.  Here  "political  traitor  "  is 
alleged  in  the  petition.  An  "official  recalcitrant"  is  an 
officer  who  kicks  backward,  one  who  objects,  shows  repug- 
nance, and  refuses  to  follow.  He  may  be  a  disagreeable 
kind  of  a  fellow,  but  not  infamous.  .  .  .  "Nincompoop" 
means  a  silly  fellow,  a  blockhead.  It  is  the  opposite  of  a 
philosopher,  and  is  only  one  way  of  saying  the  plaintiff  is 
not  a  statesman.  Of  course,  it  is  very  annoying  and  incon- 
venient not  to  be  a  statesman,  but  there  is  nothing  in  it  that 
has  a  tendency  to  disgrace  and  degrade.  .  .  , 


DEFENCES.  229 


CHAPTER    IX. 

DEFENCES. 

In  proceedings  for  libel,  it  may  be  shown  in  defence 
that  the  language  complained  of  is  not  defamatory,  or 
that  it  is  true,  or  that  it  is  privileged  by  the  nature  of 
the  occasion  upon  which  it  was  published.  Other 
defences  may  also  be  pleaded,  but  these  are  the  prin- 
cipal ones. 

It  is,  of  course,  a  complete  defence  to  show  that  the 
words  do  not  bear  a  defamatory  meaning.  If  the  words 
are  seemingly  defamatory,  their  actionable  character 
may  be  modified  by  evidence  of  other  matter  published 
in  the  same  newspaper,  which  qualifies  the  apparent 
meaning  of  the  alleged  libel. 

As  has  been  seen,  comments  upon  public  affairs,  the 
conduct  of  government  officers  and  other  public  men, 
and  on  the  policy  of  the  government,  as  well  as  crit- 
icisms of  dramatic,  musical,  literary,  or  artistic  produc- 
tions, and  reports  of  judicial  and  legislative  transactions, 
are  privileged,  and  cannot  afford  grounds  for  civil  or 
criminal  proceedings,  in  the  absence  of  proof  of  actual 
malice  on  the  part  of  the  writer  or  publisher.1  It  is 
within  the  province  of  the  judge  alone  to  decide  whether 
the  publication  is  of  a  privileged  character,  and  for  the 
jury  to  determine  whether  the  plaintiff  or  prosecution 
has  sustained  the  charge  of  actual  malice.    If  the  Court 

1  See  Chap.  VII.  on  Privileged  Publications. 
11 


230  NEWSPAPER   LIBEL. 

rules  that  the  occasion  was  privileged,  and  the  jury  find 
that  the  charge  of  actual  malice  is  not  sustained,  the 
defence  is  complete. 

Perhaps  the  most  frequent  ground  of  defence  in  libel 
proceedings  is  the  claim  that  the  alleged  libel  is  true. 
At  common  law,  evidence  of  the  truth  was  no  defence 
in  cases  of  criminal  libel,  the  publication  of  an  un- 
pleasant truth  being  frequently  deemed  a  greater  prov- 
ocation than  a  publication  of  falsehood,  and  therefore 
more  likely  to  bring  about  a  breach  of  the  peace.  It 
was  this  construction  of  the  law  which  gave  rise  to  the 
notorious  aphorism,  "  the  greater  the  truth,  the  greater 
the  libel."  Since  the  beginning  of  this  century,  the 
common  law  has  been  changed  in  this  respect  in 
every  State  in  the  Union.  In  Arkansas,  Connecticut, 
Georgia,  Indiana,  Maryland,  Mississippi,  Missouri,  New 
Jersey,  North  Carolina,  Tennessee,  and  Vermont,  and 
in  Texas  (subject  to  certain  limitations),  the  truth  may 
be  proved  in  complete  defence  in  criminal  prosecutions 
as  in  civil  actions  for  libel.1  "  But  this,  it  is  conceived, 
is  to  be  understood  of  libels  defamatory  of  the  person, 
and  not  to  scandalous  libels  of  a  more  general  char- 
acter." 2  In  Massachusetts,  the  truth  is  declared  a 
sufficient  justification,  "  unless  malicious  intention  is 
proved."3  This  statute  throws  the  burden  of  proving 
actual  malice  upon  the  prosecution.  In  all  the  remain- 
ing States,  it  is  believed,  the  general  rule  prevails  that 
a  criminal  libel  is  justified  by  proof  of  its  truth,  provided 
the  publication  was  made  "with  good  motives  and  for 
justifiable  ends."     In  these  cases  the  defendant  must 

1  See  the  constitutions  and  statutes  of  the  various  States;  see  also  Greenleaf 
on  Evidence,  vol.  III.,  §  177. 

2  Greenleaf  on  Evidence,  vol.  III.,  §  177. 

3  Public  Statutes,  chap.  214,  sec.  13. 


DEFENCES.  231 

not  only  sustain  the  burden  of  proving  the  truth,  but 
must  also  affirmatively  show  that  his  motive  in  making 
the  publication  was  good  and  the  end  justifiable. 

In  civil  actions  for  libel,  the  truth  is  generally  a  com- 
plete defence.     The  Legislature  of  Massachusetts  qual- 
ified this  rule   by  a  statute  passed  in   1855,  providing 
that  in  both  civil   and  criminal   proceedings   the   truth 
"shall  be  deemed  a  sufficient  justification,  unless  mali- 
cious intention  is  proved."     In  the  other  States,  with 
possibly  one  or  two  exceptions,  even  if  the  motive  of  the 
writer  or  publisher  of  the  libel  is  shown  to  have  been 
malicious,   the    truth    is,   in    civil    actions,   a   complete 
defence.     This  rule  is  based  upon  the  just  and  equi- 
table principle  that  a  man  is  not  entitled  to  damages 
for  injury  inflicted  upon  a  reputation  to  which  his  true 
character  did  not  entitle  him.     If  a  man  is  a  knave  and 
an  impostor,  the  fact  that  he  has  succeeded  in  masquer- 
ading as  an  honest  man  should  give  him  no   right   to 
recover    damages    from    one   who,   even    though    mali- 
ciously, exposes   his   true   character.      It  is   difficult  to 
see  why  he  should  be  protected  by  the  law  more  than 
the  confessed  knave  whose  reputation  deceives  no  one. 
Under  the  Massachusetts  statute,  however,  if  the  plain- 
tiff sustains  the  burden  of  proving  actual  malice  on  the 
part  of  the  defendant,  the  latter  will  not  be  allowed  to 
justify  himself  by  evidence  that  what  he  published  was 
the  truth.1     The  burden  of  proof  is  upon   the  defend- 
ant to  show  that  the  charges  are  true,  for  if  the  words 
are  defamatory  they  are  deemed  in  law  to  be  false  until 
the  contrary  is  shown.'3 

1  Public  Statutes  of  Massachusetts,  chap.  167,  sec.  80.  See  also  the  case  of 
Francis  A.  Perry  v.  Edward  F.  Porter,  124  Mass.  (1878),  338. 

2  The  subject  of  the  truth  in  defence  in  civil  and  criminal  cases  is  fully  dis- 
cussed in  the  case  of  P.  B.  Castle  v.  D.  W.  Houston  (Leavenworth  Daily  Com- 
mercial), 19  Kan.  (1877),  417. 


232  NEWSPAPER   LIBEL. 

If  the  defendant  undertakes  to  show  that  the  charges 
are  true,  but  fails  fully  so  to  do,  the  evidence  may  still 
be  received  in  mitigation  of  damages.1  An  unsustained 
allegation  that  the  charges  are  true  is  not  proof  of 
malice,  unless  the  jury  find  that  as  a  matter  of  fact 
the  defence  was  set  up  with  malicious  intent  and  with 
knowledge  of  its  falsity.2 

When  the  defendant  justifies  the  publication  on  the 
ground  that  it  is  true,  proof  of  the  truth  must  be  as 
broad  as  the  charge.  Thus  where  the  charge  was  of 
smuffdins:  "  during  the  late  war,"  it  was  held  that  it 
was  not  sustained  by  proof  of  one  act  of  smuggling  com- 
mitted before  the  war.3 

The  following  was  published  as  correspondence  in 
the  Chenango,  N.  Y.,  Union  :  — 

Joseph  F.  Bennett,  a  somewhat  notorious  character,  whose 
presence  in  this  village  [Sherburne]  was  a  blessing  too  much 
disguised  to  be  at  all  apparent,  is  holding  revival  meetings, 
and  preaching  Rev.  Mr.  Earle's  sermons,  in  various  rural 
districts  of  this  State.  We  know  for  a  certainty  that  his  ob- 
ject is  a  mercenary  one.  ...  As  Bennett  is  apt  to  assume 
an  alias,  we  give  a  short  description  of  him.  .  .  . 

Evidence  was  given  of  the  truth  of  some  of  the 
charges,  but  no  proof  was  offered  of  the  charge  that 
"  Bennett  is  apt  to  assume  an  alias."  It  was  held  that 
the  only  question  for  the  jury  was  the  amount  of  dam- 
ages to  be  awarded  the  plaintiff.4 

A  series  of  charges  were   published   in  the   Denver 

1  James  Hunt  v.  James  Gordon  Bennett  (New  York  Herald,  April  n,  1845), 
4  E.  D.  Smith,  647;  19  N.  Y.  173. 

2  James  Aird  v.  the  Fireman's  Journal  Co.,  10  Daly  (N.  Y.  Common  Pleas, 
1880,254. 

3  Stilwell   v.   Barter  (Ogdensburg  Times),  19  Wendell  (N.  Y.  1838),  487. 

4  Joseph  F.  Bennett  v.  Walter  G.  Smith  et  a/.,  30  N.  V.  Supreme  Court  Re- 
ports (1880),  50. 


DEFENt  1  v 


233 


Tribune,  December  27  and  29,  1873,  against  one  Down- 
ing, a  probate  judge.  In  the  course  of  the  articles 
occurred  the  following  passages:  — 

J.  Downing  has  been  guilty  of  forgeries  enough  to  con- 
fine him  in  the  penitentiary  not  less  than  200  years.  .  .  . 
Boss  Tweed  said  he  was  a  statesman  previous  to  being 
locked  up  as  a  felon.  Wonder  what  Jack  Downing  would 
give  as  his  occupation  in  the  event  of  a  similar  contingency, 
which  is  far  from  unlikely  ?  .  .  . 

More  Facts  of  Jack  Downing's  "Reign."  -  Hoiv 
the  property  interests  of  Denver  were  "  led  to  the  altar." 

My  conscience  hath  a  thousand  several  tongues, 
And  every  tongue  brings  in  a  several  tale, 
And  every  tale  condemns  me  for  a  villain. 
Perjury!  foul  perjury!!  in  the  highest  degree: 
Murder!  stern  murder!!  in  the  direst  degree; 
All  several  sins,  all  used  in  each  degree, 
Throng  to  the  bar,  crying  all,  Guilty!  guilty! 

Richard  III. 

And  yet  Jack  Downing  affects  to  laugh  with  a  low  gut- 
tural sound,   Ha  !  ha  ! !  ha  ! ! ! 

The  forgery  charged  against  Mr.  Downing  consisted 
in  alterations  in  a  memorandum  book  kept  by  a  public 
officer  for  his  own  convenience,  not  required  by  law  to 
be  kept,  and  the  entries  in  which  could  not  affect  any 
legal  rights.  The  Supreme  Court  held  that  such  altera- 
tions did  not  amount  to  forgery  under  the  statute,  and 
that  accordingly,  the  proof  not  being  as  broad  as  the 
charge,  the  plaintiff  was  entitled  to  recover.1 

A  defendant's  evidence  in  justification  must  relate  to 
the  identical  matter  charged  in  the  libel,  and  not  to 
some  matter  which  is  distinct  though  similar.  The  play 
called  "  Pique "    was    produced    by  Augustin   Daly  in 

1  Jacob  Downing  v.  Henry  C.  Brown,  3  Col.  571. 


234 


NEWSPAPER   LIBEL. 


New  York  in  December,  1875,  and  it  was  announced  as 
written  by  Mr.  Daly.  Charles  A.  Byrne  thereupon  pub- 
lished a  statement  in  the  Dramatic  News,  to  the  effect 
that  Mr.  Daly  had  wrongfully  appropriated  a  play  called 
"  Flirtation,"  which  the  author,  a  woman,  had  left  with 
him  to  read  three  or  four  years  before,  and  that  this 
play,  under  the  name  "  Pique,"  was  the  one  which 
Mr.  Daly  was  producing  as  his  own  composition.  Mr. 
Daly  brought  suit  for  damages,  and  the  Court  held  that 
Mr.  Byrne  could  not  be  allowed  to  give  evidence  in  de- 
fence that  Mr.  Daly  had  wrongfully  appropriated  a  play 
called  "  Mock  Marriage  "  and  produced  it  under  the 
name  of  "Pique."1  A  verdict  for  $2,689.73  against 
Mr.  Byrne  was  sustained  by  the  New  York  Court  of 
Appeals.2 

In  a  well-known  English  case  the  libel  complained  of 
was  the  following,  published  in  the  Medical  Times  in 
1849,  regarding  an  inquest  at  which  the  plaintiff  pre- 
sided as  coroner :  — 

There  can  be  no  court  of  justice  unpolluted  which  this 
libellous  journalist,  this  violent  agitator  and  sham  humani- 
tarian, is  allowed  to  disgrace  with  his  presidentship. 

The  defendants  showed  that  a  certain  surgeon  re- 
covered a  verdict  for  .£100  against  the  coroner  on  ac- 
count of  a  libellous  publication  in  the  Lancet  in  1828. 
Baron  Parke,  in  delivering  the  opinion  of  the  Court, 
said  :  "  I  am  perfectly  satisfied  that  the  words  '  libellous 
journalist'  do  not  mean  that  the  plaintiff  has  been 
guilty,  upon  one  occasion  only,  of  having  merely  pub- 
lished a  libel,  but  that  he  has  been  guilty  of  gross  mis- 
conduct as  a  journalist,  by  the  habit  of  libelling  others." 

1  Daly  v.  Byrne,  i  Abbott's  New  Cases  (1876),  150. 

2  77  N.  Y.  (1879),  182. 


DEFENCES. 


235 


A  verdict  against  the  editors  of  the  Medical  Times  for 
^350  was  sustained.1 

A  communication  was  published  in  the  Oshkosh 
Times  in  October,  1876,  under  the  heading,  "Kimball 
Selling  Post-Offices,"  in  which  appeared  the  following 
query  :  "  How  will  honest  people  relish  sending  back  to 
Congress  a  man  who  makes  appointments  a  source  of 
personal  revenue  ?"  Hon.  A.  M.  Kimball  brought  suit 
for  libel  against  D.  W.  Fernandez  et  a/.,  publishers  of 
the  Times.  At  the  trial,  it  was  held  that  allegations  in 
defence  that  Congressman  Kimball,  as  a  candidate  for 
re-election,  spent  large  sums  of  money  in  corrupting  the 
electors  of  his  district,  and  charging  him  generally  with 
incompetence  for  the  office  of  representative,  were  alto- 
gether irrelevant.'-2 

It  is  necessary  for  the  defendant  to  show  the  truth 
of  the  whole  libel.  Where  a  report  of  a  lawsuit,  con- 
taining a  single  charge  of  extortion,  was  headed,  "  How 
Lawyer  Bishop  Treats  his  Clients,"  it  was  held  that  it 
was  not  sufficient  to  show  the  truth  of  that  one  charge, 
but  the  heading,  which  implied  general  bad  treatment 
of  clients,  ought  to  be  justified.3  Proof  that  one  of  a 
number  of  charges  is  true  is  never  a  complete  defence  ; 
but  if  the  charges  are  distinct,  and  some  are  proved 
true  and  others  not,  the  plaintiff  will  only  recover 
damages  in  respect  of  the  portion  which  is  not  justified. 
If  a  charge  or  charges  constituting  the  gist  of  the  libel 
are  proved  true,  it  is  immaterial  that  slight  inaccuracies 

1  Wakley  v.  Cooke  et  al.,  4  Exchequer  Reports,  511.  In  Missouri  it  was 
held  that  if  the  defendants  falsely  charged  that  the  plaintiff  had  been  convicted  of 
libel,  and  his  punishment  assessed  at  imprisonment,  the  publication  was  libellous 
per  se.     Boogher  v.  Knapp  et  al.  (Missouri  Republican),  76  Mo.  (1S82),  457. 

2  Kimball  :■.  Fernandez  et  al.,  41  Wis.  329. 

3  Bishop  v.  Latimer  (Daily  Western  Mercury),  4  Law  Times  (Eng.  1861), 
775- 


236  NEWSPAPER    LIBEL. 

occur  in  some  details,  provided  the  inaccuracy  does  not 
aggravate  the  libel.1  It  is  often,  however,  a  difficult 
question  to  determine  what  inaccuracies  will  be  deemed 
material  and  what  immaterial,  as  will  be  seen  by  the 
case  of  Daly  v.  Byrne,  cited  above. 

Where  the  plaintiff  is  charged  in  the  alleged  libel 
with  a  crime,  but  upon  his  trial  for  the  offence  has  been 
acquitted,  the  writer  or  publisher  is  not  precluded  from 
proving  in  defence  that  the  plaintiff  is  in  fact  guilty  of 
the  offence,  despite  his  acquittal.2  It  has  been  held, 
where  the  libellous  charge  is  to  the  effect  that  the 
plaintiff  has  been  guilty  of  a  crime,  that  the  defendant 
may  in  a  civil  action  justify  the  publication  by  showing 
by  a  preponderance  of  evidence  that  the  charge  is  true; 
but  in  a  criminal  prosecution  the  charge  must  be  sus- 
tained by  proof  beyond  a  reasotiab/e  doubt?  It  has, 
indeed,  been  decided  in  many  cases  that  even  in  a  civil 
action  for  libel,  where  the  publication  imputes  a  crim- 
inal offence,  the  charge  must  be  proved  as  strictly  as 
upon  the  trial  of  an  indictment,  but  these  cases  are 
somewhat  exceptional  to  the  general  rule.  In  England, 
if  the  alleged  libel  amounts  to  a  charge  of  felonv,  and 
the  jury  find  that  the  charge  is  sustained,  the  plaintiff 
in  the  action  for  libel  may  at  once  be  placed  upon  trial 
for  the  offence  without  being  indicted  by  the  grand 
jury;4  but  it  is  not  believed  that  this  rule  has  been 
adopted  anywhere  in  the  United  States. 

A  writer  in  the  San  Francisco  Ei'ening  Bulletin, 
November  3,  1863,  speaking  of  the  dealings  of  certain 

1  Odgers  on  Libel  and  Slander,  p.  170. 

-  William  McBee  v.  C.  C.  Fulton  et  al.  (Baltimore  American),  47  Md. 
(1878),  430. 

:l  Hugh  S.  Peoples  ?'.  the  Evening  News  Association,  51  Mich.  (1883),  11. 
4  Odgers  on  Libel  and  Slander,  p.  178. 


DEFENCES. 


237 


parties  with  reference  to  a  mine,  said,  "The  chief  owners 
believe  that  they  have  been  outrageously  swindled." 
Now,  if  such  was  the  belief  of  the  chief  owners,  the 
writer  stated  simply  that  which  was  the  truth ;  but  at 
the  suit  of  John  Downs  Wilson  v.  George  K.  Fitch 
et  a/.,  proprietors  of  the  Bulletin,  it  was  held  that  the 
defence  would  be  bad  unless  it  was  shown  that  what 
the  chief  owners  are  said  to  have  believed  was  in  fact 
true.1  It  was  even  held  in  this  case  that  the  belief  of 
the  owners  in  the  truth  of  the  charge  was  no  mitigation, 
and  judgment  for  $7,500  in  favor  of  the  plaintiff  was 
affirmed.  In  most  courts,  however,  evidence  that  the 
person  responsible  for  the  libel  believed  it  to  be  true 
will  be  received  in  mitigation  of  damages,  as  disproving 
actual  malice. 

It  is  no  defence  to  show  that  the  publication  is  based 
upon  common  rumor,  if  the  rumor  is  false  and  defama- 
tory, nor  is  it  a  defence  to  show  that  it  was  copied  from 
another  newspaper,-  nor  that  the  alleged  libel  purports 
merely  to  be  the  statement  of  a  correspondent.  Any 
such  evidence  will,  however,  generally  be  received  in 
mitigation.  An  Indiana  newspaper,  called  the  Spit  it 
of  the  West,  published,  January  18,  1854,  the  following 
paragraph  :  — 

Some  one  writing  to  us  from  Taylorsville  .  .  .  says  that 
the  house  in  which  the  post-office  is  kept  is  of  such  a  low 
character  that  a  decent  lady  dare  not  enter.  We  know 
nothing  of  the  matter,  save  by  the  representations  of  our 
correspondent ;  but  should  his  statement  prove  true,  it  is 
high  time  that  the  post-office  was  in  the  hands  of  others. 

The  postmaster  sued  the  editor,  and  the  Court  ruled 

1  Wilson  v.  Fitch  et  a/.,  41  Cat.  363. 

2  Sanford  v.  Bennett  (New  York  Herald),  24  N.  V.  (1861),  20. 

11* 


238  NEWSPAPER   LIBEL. 

that  the  editor  could  not  avoid  responsibility  by  quoting 
his  correspondent.1 

By  some  courts,  it  has  been  held  to  be  a  good 
defence  to  show  that  the  plaintiff  has  published  libel- 
lous matter  regarding  the  defendant,  but  such  publica- 
tion by  the  plaintiff  must  have  been  recent  in  point  of 
time.  "  Where  two  parties  engage  in  a  newspaper  con- 
troversy and  hurl  abusive  epithets  at  each  other,  they 
are  both  in  the  wrong,  and  neither  of  them  should 
receive  damages  from  the  other."  Such  was  the  rul- 
ing of  the  Court  in  the  case  of  Mark  F.  Bigney,  editor 
of  the  New  Orleans  City  Item,  against  Watson  Van 
Benthuysen  and  the  States  newspaper/3  The  suit  was 
brought  on  account  of  the  publication  in  the  States, 
January  23,  1882,  of  the  following  article  :  — 

M.  F.  Bigney.  —  The  above-named  scoundrel,  editor  of 
the  City  Item,  has  been  in  the  habit  of  publishing,  in  the 
columns  of  his  paper,  lying  statements  with  reference  to 
business  matters,  and  coarse,  impertinent  allusions  to  indi- 
viduals, intended  as  wit.  When  called  to  account,  he  resorts 
to  the  indecent  method  of  representing  those  alluded  to  as 
bulldozers  and  swaggerers.  Any  one  having  respect  for  the 
opinions  of  others  would  adopt  some  other  course  of  action. 
This  creature,  having  no  respect  for  anything,  has  no  such 
conception  of  duty.  It,  therefore,  becomes  necessary  to 
brand  him  thus  publicly,  that  his  infamous  character  may 
be  known  to  all.  The  States  is  authorized  to  furnish  the 
name  of  the  writer.  *        *        * 

This  article,  written  by  Van  Benthuysen,  was  pro- 
voked by  another,  published  in  the  City  Item,  January 
21,  1882,  in  which  Bigney  denounced  Van  Benthuysen 
as  an  "irate  swaggerer,"  "  bulldozer,"  "  arrogant  blus- 

'  Benajah  Johnson  v.  Columbus  Stebbins,  5  Ind.  364. 
2  36  La.  Annual  Reports  (1884),  38. 


DEFENCES.  239 

terer,"  and  as  ignorant  "how  to  couch  his  ideas  in 
polite  and  gentlemanly  language."  The  Court  held 
that  this  language  constituted  such  provocation  for 
Van  Benthuysen's  article  in  the  States  as  to  destroy 
Bigney's  right  of  action  for  libel,  "  in  spite  of  the  tru- 
ism that  one  wrong  does  not  justify  another."  In  the 
lower  court,  a  verdict  was  rendered  in  favor  of  the 
plaintiff  for  $4,750,  but  the  Supreme  Court  set  this 
verdict  aside,  and  ordered  judgment  for  the  defendant 
with  costs. 

In  an  earlier  case,  in  Massachusetts,  it  was  decided 
that  where  the  publication  by  the  plaintiff  is  so  recent 
as  to  afford  a  reasonable  presumption  that  the  libel  by 
the  defendant  was  published  under  the  influence  of  the 
passions  excited  by  it,  it  may  be  given  in  evidence  in 
mitigation  of  damages,  but  not  in  defence.1  In  this 
case,  a  verdict  in  the  plaintiff's  favor  for  $500  was  set 
aside  and  a  new  trial  granted. 

The  defendant  may  prove,  in  mitigation  of  damages, 
that  the  plaintiff's  reputation  was  already  so  bad  at  the 
time  when  the  libel  was  published,  that  the  publication 
could  not  make  it  materially  worse.  While  evidence  of 
the  plaintiff's  general  bad  character  will  be  received  in 
mitigation  of  damages,  it  will  not  be  received  as  a  com- 
plete defence  where  the  libel  refers  to  a  particular 
matter.  In  June,  1882,  the  Kernersville,  N.  C,  News 
published  the  following  :  — 

'Squire  Davis,  after  his  style  of  dispensing  justice,  con- 
verts the  case  into  an  assault  and  battery,  and  discharges 
the    offender    by   all   decency   and    law    upon    payment    of 

1  David  L.  Child  (Massachusetts  Journal')  v.  James  L.  Homer  et  al.  (Bos- 
ton Gazette,  July  10  and   13,   1829),  13  Pickering,  503.     (See  post,  p.  263.) 


240  NEWSPAPER   LIBEL. 

costs,  which  was  thirty  dollars.  We  presume  that  Mr. 
Davis  had  an  eye  to  the  costs ;  that  if  this  grave  offender 
was  bound  over  or  committed  to  jail,  he  (Davis)  would  lose 
a  handsome  fee,  and  accordingly  rendered  his  decision  to 
suit  his  own  convenience. 

Both  criminal  and  civil  proceedings  were  instituted 
against  T.  A.  Lyon  and  another,  editor  and  publisher 
respectively  of  the  News,  on  account  of  this  publica- 
tion. In  the  criminal  case,  the  defendants  offered  to 
show  in  defence  that  'Squire  Davis  bore  a  bad  general 
reputation  as  an  officer,  but  the  Court  held  that  the 
defence  should  refer  to  the  particular  matter  contained 
in  the  charge,  and  the  defendants  were  convicted.1  In 
the  civil  action,  the  defendants  showed  habitual  abuse 
of  authority  on  the  part  of  the  'Squire,  as  charged  in 
the  libel,  and  a  verdict  in  their  favor  was  recovered 
and  sustained.2 

If  the  words  are  libellous  on  their  face,  the  defend- 
ant will  not  be  allowed  to  plead  that  he  did  not  intend 
to  defame  the  plaintiff.  "  Where  the  wrong  done 
consists  in  a  libel,  —  which  can  never  be  accidental, 
—  the  publishing  is  always  imputed  to  a  wrong  motive, 
and  that  motive  is  called  malicious."3  But  the  haste 
incident  to  issuing  the  paper,  the  time  at  which  the 
libellous  article  was  handed  in,  and  the  sufficiency  of 
the  force  employed  on  the  paper  for  gathering  news 
and  editing  it,  may  be  considered  as  bearing  on  the 
question  of  the  publishers'  negligence.4 

1  The  State  v.  T.  A.  Lyon  et  a/.,  89  N.  C.  568. 

2  Joseph  A.  Davis  v.  T.  A.  Lyon  et  al.,  91  N.  C.  444. 

"  The  Court  in  Donald  McArthur  v.  the  Detroit  Daily  Post  Co.  and  Daily 
Free  Press  Co.,  16  Mich.  (1868),  447. 

4  Cornelius  J.  Keilly  v.  James  E.  Scripps  (Detroit  Evening 'AVaw),  38  Mich. 
(1878),  10. 


DEFENCES. 


241 


In  a  case  in  Massachusetts,  decided  in  1846,  it  was 
held  that  an  action  for  libel  cannot  be  maintained 
against  the  publisher  of  a  newspaper  if  he  has  no 
knowledge  at  the  time  of  the  publication  that  the 
article  complained  of  is  libellous.1  The  suit  was 
brought  on  account  of  the  publication  in  the  Springfield 
Tri-Weekly  Post  of  an  article,  which  the  editor,  who 
received  the  manuscript  from  the  writer,  and  the  pub- 
lisher, David  F.  Ashley,  who  was  the  defendant  in  the 
case,  both  believed  to  be  a  purely  fictitious  narrative. 
The  article  was  not  apparently  defamatory,  but  the 
plaintiff,  Reuben  Smith,  proved  that  the  article  was 
defamatory,  and  he  showed  that  he  was  the  object  of 
attack  by  evidence  of  certain  facts  coinciding  with  facts 
stated  in  the  libel,  and  by  evidence  of  the  existence  of 
certain  reports  concerning  him  corresponding  with 
statements  contained  in  the  libel.  The  Court,  in  ren- 
dering its  decision,  said  :  "  If  the  defendant  had  no 
knowledge  that  the  article  published  was  libellous,  he 
has  been  guilty  of  no  wrong,  and  he  is  not  responsible 
by  lawr,  although  the  plaintiff  has  thereby  been  injured. 
If  the  article  was  libellous,  his  remedy  is  against  the 
writer." 

A  case  somewhat  similar  to  that  of  Smith  v.  Ashlev, 
but  resulting  differently,  is  the  case  of  Nightingale  v. 
Williams  et  a/.,  growing  out  of  the  publication  of  "  Cape 
Cod  Folks,"  a  novel  by  Sally  Pratt  McLean,  issued  in 
1881.  Miss  McLean  had  passed  a  winter  as  a  school 
teacher  at  Cedarville,  otherwise  known  as  Cedarswamp, 
a  village  in  Plymouth,  Mass.,  and  made  Cedarswamp 
the  scene  of  her  novel.     She  also  employed  the  Cedar- 

1  Smith  z>.  Ashley,  n  Metcalf,  367.  See  also  the  case  of  Caldwell  v.  Ray- 
mond  et  al.,  cited  ante,  p.  157. 


242 


NEWSPAPER   LIBEL. 


swampers  of  her  acquaintance  as  the  characters  in  the 
story,  and,  in  the  innocence  of  her  heart,  even  neglected 
to  substitute  fictitious  names  for  those  of  her  friends  in 
the  village.  The  novel  attracted  general  attention,  and 
shortly  after  it  appeared,  a  copy  strayed  into  Cedar- 
swamp.  That  village  was  shaken  from  centre  to  cir- 
cumference at  having  its  obscurity  and  the  obscurity  of 
its  citizens  thus  changed  into  almost  world-wide  fame. 
Five  or  six  libel  suits  were  brought  by  people  character- 
ized in  the  story,  and  many  more  suits  were  threat- 
ened. Meanwhile,  two  editions  of  the  work  having 
been  exhausted,  the  publishers  issued  a  third,  in  which 
"  Cedarswamp  "  became  "  Wallencamp,"  "  Lorenzo 
Leonard  Nightingale "  became  "  Benney  Leonard 
Cradlebow,"  Grandpa  and  Grandma  "Fisher"  became, 
respectively,  Grandpa  and  Grandma  "  Spicer,"  and  other 
changes  were  made  in  the  remaining  characters,  care 
being  taken  to  select  names  of  corresponding  length, 
in  order  to  facilitate  the  work  of  correction  of  the 
electrotype  plates.  The  changes  in  the  names  had  no 
effect  upon  the  demand  for  the  book,  and  edition  after 
edition  was  issued  as  fast  as  the  presses  could  supply 
them. 

A.  Williams  &:  Co.,  publishers  of  the  novel,  had  at 
the  outset  been  unaware  that  the  names  of  the  char- 
acters were  not  fictitious,  and  when  it  was  learned  that 
the  names  were  real,  and  that  Cedarswamp  was  indig- 
nant at  the  intrusion  upon  its  obscurity,  a  lawyer  was 
despatched  to  the  Cape  to  appease  the  angry  Cedar- 
swampers.  Settlements  were  effected  in  about  forty 
cases ;  the  damages  paid  ranging  from  $200  down 
to  a  plug  of  tobacco,  in  proportion  to  the  prominence 
of    the    character  and    the   degree   of  the  individual's 


DEFENCES. 


243 


indignation.     Lorenzo   Leonard  Nightingale,  however, 
would  not  be  conciliated.       He  sued  for  damages,  one 
count  in   his  declaration    being  for    the   first  and  sec- 
ond editions  of  the  work,  and  a  second  count  for  the 
third  and  subsequent  editions,  in  which  he  figured  as 
"Cradlebow."    The  case  was  tried  in   February,  1884. 
The   judge  charged   the   jury   that   if   the    first  edition 
was  libellous,  the  third  was  also  libellous,  and  the  jury 
returned  a  verdict  in  favor  of  Mr.   Nightingale  in  the 
sum  of  $1,090.    The  defendants'  exceptions  were  argued 
before  the  Supreme  Court  in  October,  1884,  but  before 
the   Court   rendered   its  opinion,   the   case   was    finally 
settled  by  the  payment  to  Mr.   Nightingale  of   $500.' 
It  is  no  defence  in  either  civil  or  criminal  proceed- 
ings for  libel  that  the  publication  was  made  in  jest,  or 
that  the  writer  or  publisher  was  intoxicated  at  the  time 
of  the  wrong-doing,  or  that  he  was  a  minor.     Insanity, 
however,  is  a  complete  defence.2     It  is  no  defence  that 
others  have  published  the  same  matter  and  have  not 
been  sued  or  prosecuted.     An  employee  cannot  exon- 
erate himself  by  showing  that  he  acted  under  his  em- 
ployer's  orders,  and   if  he   is  required  to  pay  a  verdict 
or  a  fine,  he   cannot  recover  indemnity  from    his    em- 
ployer, even  if  the  latter  has  expressly  agreed  in  writing 
to  indemnify  him  in  case  a  verdict  were  obtained  against 
him.     If,  however,  the  employee  occupies  such  a  sub- 
ordinate position  as   a  carrier  or  pressman,  and    can 
show  that  it  was  no  part  of  his  duty  to  know  the  con- 
tents of  the  paper,  and  that,  in  fact,  he  did  not  read 
the  libel  and  had  no  reason  to  suppose  that  the  paper 

1  See  the  Boston  Evening  Record,  April  i,  1885. 

2  Townshend  on  Slander   and   Libel,  p.   476.     As   Olivia  says  in  "  Twelfth 
Night,"  "  There  is  no  slander  in  an  allowed  fool."  —  Act  I.,  scene  5. 


-44 


NEWSPAPER   LIBEL. 


contained  libellous  matter,  he  will  not  be  liable  either 
civilly  or  criminally.1 

It  may  be  shown  in  defence  that  the  prosecution  or 
claim  of  damages  is  outlawed  by  the  statute  of  limita- 
tions.2 But  the  sale,  within  the  statutory  period,  of  a 
single  copy  of  the  newspaper  containing  the  libel,  will 
take  the  case  out  of  the  operation  of  the  statute,  and 
will,  in  a  civil  .action,  revive  the  right  of  the  person 
libelled  to  recover  damages  for  the  entire  injury  caused 
by  the  original  publication  by  the  party  selling  the  copy 
of  the  paper. 

James  Harmer,  editor  of  the  Weekly  Dispatch,  pub- 
lished in  that  paper,  September  19,  1830,  certain  charges 
against  Duke  Charles  of  Brunswick,  alleging  oppressive 
conduct  and  misgovernment  on  the  part  of  the  duke 
while  reigning  sovereign  of  Brunswick  prior  to  his  en- 
forced abdication,  September  7,  1830.  The  duke  took 
no  notice  of  the  publication  for  more  than  seventeen 
years,  and  meantime  the  period  prescribed  by  the  stat- 
ute of  limitations  for  libel  actions  had  expired.  But  in 
1847  the  Weekly  Dispatch,  which  was  still  edited  by  Mr. 
Harmer,  again  attacked  the  character  of  the  duke.  The 
latter  then  sent  an  agent  to  the  office  of  the  Weekly 
Dispatch,  and,  at  the  agent's  request,  a  copy  of  the 
paper  for  September  19,  1830,  was  hunted  up  and  sold 
to  him.  Thereupon  the  duke  commenced  an  action  of 
libel  against  Mr.  Harmer  on  account  of  the  original  pub- 
lication. The  Court  held  that  such  sale  of  a  single  copy 
of  the  libel  —  although  the  copy  was  purchased  ex- 
pressly with  a  view  to  reviving  the  cause  of  action  — 
amounted  to  a  fresh  publication  of  the  libel,  and  en- 

1  Odgers  on  Libel  and  Slander,  p.  359. 

2  See  p.  60. 


DEFENCES. 


245 


titled  the  plaintiff  to  such  damages  as  he  might  have 
recovered  if  he  had  brought  the  action  before  the  expi- 
ration of  the  statutory  period.  The  jury  awarded  the 
duke  £500  damages.1  After  the  conclusion  of  this 
suit,  Mr.  Harmer  published  in  the  Sun,  of  which  he  had 
become  proprietor,  comments  upon  the  case,  in  the 
course  of  which  he  said  :  — 

Unless  he  may  be  solicitous  to  proceed,  as  upon  a  rather 
profitable  speculation,  in  his  attacks  upon  the  liberty  of  jour- 
nalism, we  would  suggest  to  the  ex-Duke  of  Brunswick  the 
propriety  of  withdrawing  into  his  own  natural  and  sinister  ob- 
scurity, which  he  had  better  hide  in  their  sinister  obscurity 
than  continually  bring  them  before  the  public  in  the  shape  of 
actions.  For  two  reasons  this  would  be  advisable.  First, 
because  he  will  find  it  little  short  of  an  impossibility  to 
vilify  still  more  his  already  sufficiently  vilified  reputation; 
and  secondly,  because  the  effort  would  be  as  futile  as  ablu- 
tions to  an  Ethiopian. 

His  litigious  highness  then  brought  another  suit  for 
libel  against  Mr.  Harmer,  and  appeared  as  his  own 
counsel.  He  argued  that  the  word  "  natural,"  which 
was  printed  in  italics,  implied  a  disgraceful  charge,  but 
the  jury  returned  a  verdict  in  favor  of  the  defendant.2 

Where  an  action  is  brought  for  a  libel  concerning  one 
in  respect  to  his  occupation,  it  is  a  good  defence  to 
show  that  the  occupation  is  an  unlawful  one  ;  but  even 
if  the  plaintiff's  occupation  is  unlawful,  he  may  still  re- 
cover damages  for  a  libel  concerning  him  independently 
of  his  occupation.  The  Louisiana  State  Lottery  Com- 
pany, through    its    manager,    Maximilian   A.    Dauphin, 

1  Duke  of  Brunswick  v.  Harmer,  14  Adolphus  &  Ellis'  Queen's  Bench 
Reports,  185. 

-  Duke  of  Brunswick  rr.  Harmer,  3  Carrington  &  Kirwan's  Queen's  Bench 
Reports  (1850),  10. 


246  NEWSPAPER   LIBEL. 

commenced  a  suit  for  $100,000  against  Postmaster-Gen- 
eral Gresham  for  his  interference  with  the  use  of  the 
United  States  mails  by  the  lottery  company  for  the 
transmission  of  lottery  circulars,  tickets,  etc.  In  an 
editorial  commenting  upon  this  suit,  the  Philadelphia 
Times  (July  26,  1883)  used  the  following  language:  — 

Mr.  Dauphin  will  fail  in  his  attempt  to  recover  damages 
from  a  cabinet  officer  for  the  offence  of  honest  fidelity  to 
honest  laws,  but  the  lesson  is  worthy  of  the  study  of  the 
nation.  It  is  the  dying  shriek  of  one  of  the  most  stupen- 
dous public  robberies  of  our  history,  and  it  will  shed  excep- 
tional lustre  upon  the  character  of  Postmaster-General 
Gresham,  who  is  honored  with  the  last  ebullition  of  malignity 
of  a  long  omnipotent,  but  now  overthrown,  organized  crime. 

For  this  publication  Mr.  Dauphin  sued  the  Times 
Publishing  Company,  claiming  $100,000  damages  for 
injury  to  his  business  as  manager  of  the  lottery  com- 
pany. The  Times  Publishing  Company  filed  a  de- 
murrer to  Mr.  Dauphin's  declaration,  claiming  that,  as 
Dauphin's  business  was  an  unlawful  one  under  the  laws 
of  Pennsylvania,  he  could  not  maintain  an  action,  and 
this  demurrer  was  sustained  in  the  United  States  Circuit 
Court.  Dauphin  appealed  from  this  decision  to  the 
United  States  Supreme  Court,  but  the  appeal  was  dis- 
missed, April  29,  1887,  by  consent  of  the  appellant.3 

The  defence  is  complete  if  it  is  shown  that  the  plain- 
tiff has  already  recovered  damages  from  the  same  de- 
fendant for  the  same  cause  of  action  ;  but  if  the  same 
matter  be  printed  a  second  time,  the  second  publication 
would  give  a  new  right  of  action.  So,  too,  as  has  been 
seen,  every  sale  of  a  copy  of  the  newspaper  containing 
the  libel  is  a  fresh  publication  of  the  libellous  matter. 

1  122  U.  S.  645. 


DEFENCES. 


247 


Accordingly,  a  cautious  publisher,  upon  discovering 
that  any  matter  contained  in  the  paper  is  libellous, 
would  immediately  stop  all  further  sale  of  copies  of 
that  issue. 

A  previous  recovery  may  be  pleaded  in  defence,  even 
if  it  was  a  recovery  from  another  party,  provided  the 
two  defendants  were  jointly  concerned  in  the  publica- 
tion, as  in  the  case  of  partners.  Articles  were  pub- 
lished in  the  Jersey  City  Journal,  charging  Joseph  M. 
Woods,  a  coal  dealer,  with  selling  coal  by  short  weight. 
Mr.  Woods  obtained  judgment  against  one  Hilton  for 
$1,000  on  account  of  such  charges,  contained  in  three 
separate  articles.  He  then  brought  suit  against  Zebina 
K.  Pangburn  et  a/.,  on  account  of  these  three  libels,  for 
which  they  were  liable  jointly  with  Hilton,  and  on  ac- 
count of  two  others  of  later  date,  for  which  Hilton  was 
not  liable.  Judgment  for  $4,000  was  recovered  against 
Pangburn  et  a/.,  but  meanwhile  Hilton  paid  the  judg- 
ment which  had  been  obtained  against  him.  Pangburn 
et  a/,  then  moved  that  judgment  against  them  be  set  aside. 
The  Court  of  Appeals  of  New  York  held  that  the  satis- 
faction (payment)  of  the  first  judgment  was  a  satisfac- 
tion of  so  much  of  the  second  as  was  for  the  same  three 
libels,  and  the  case  was  sent  back  to  have  the  damages 
for  the  two  later  libels  estimated  by  a  jury.1  If,  instead 
of  being  jointly  liable,  two  defendants  are  severally 
liable,  as,  for  instance,  the  writer  and  the  publisher,  a 
previous  lecovery  against  one  is  no  defence  in  an  action 
against  the  other.  Each  defendant  is  liable  for  all  the 
ensuing  damage. 

It  is  no  defence  to  a  civil  action  that  the  defendant 
has   already  been   criminally  prosecuted  for  the  same 

1  Woods  v.  Pangburn  et  al.,  75  N.  Y.  (1878),  495. 


248  NEWSPAPER    LIBEL. 

libel,  for  in  the  one  case  the  proceeding  is  brought  on 
behalf  of  the  public,  on  account  of  the  danger  that  the 
libel  will  provoke  a  breach  of  the  peace,  and  in  the 
other  it  is  brought  to  recover  for  injury  to  an  individual. 
Neither  is  it  a  bar  to  criminal  proceedings  to  show  that 
the  defendant  has  already  been  required  to  pay  a  ver- 
dict in  a  civil  action. 

William  Lloyd  Garrison,  in  the  Genius  of  Universal 
Emancipation,  November  20,  1829,  published  this  typo- 
graphical curiosity  :  — 

The  Ship  Fraxcis.  —  This  ship,  as  I  mentioned  in  our 
last  number,  sailed  a  few  weeks  since  from  this  port  with  a 
cargo  of  slaves  for  the  New  Orleans  market.  ...  I  have 
stated  that  the  ship  Francis  hails  from  my  native  place,  New- 
buryport,  (Massachusetts,)  is  commanded  by  a  Yankee  cap- 
tain, and  owned  by  a  to.'  nsman  named  FRANCIS  TODD. 
Of  captain  Nicholas  Brown  I  should  have  expected  better 
conduct.  It  is  no  worse  to  fit  out  piratical  cruisers,  or  to 
engage  in  the  foreign  slave  trade,  than  to  pursue  a  similar 
trade  along  our  own  coasts;  and  the  men  who  have  the 
wickedness  to  participate  therein,  for  the  purpose  of  heaping 
up  wealth,  should  be  (r^=  sentenced  to  solitarv  con- 
finement for  life  ;  cJp  they  are  the  enemies  of  their 
own  species  —  highway  robbers  and  murderers;  and  their 
final  doom  will  be,  unless  they  speedily  repent,  to  occupy  the 
lowest  depths  of  perdition.  .   .  . 

The  great  emancipator  was  fined  fifty  dollars  and 
costs  in  the  City  Court  of  Baltimore  for  this  publication, 
and  was  imprisoned  seven  weeks  in  default  of  payment. 
A  verdict  for  $1,000  was  subsequently  recovered  against 
him  in  a  civil  suit  brought  by  Francis  Todd  for  the  same 
libel.1 

'  A  Brief  Sketch  of  the  Trial  of  William  Lloyd  Garrison,  published  by  Gar- 
rison &  Knapp,  Boston,  1834. 


DEFENCES. 


249 


A  defendant,  finally,  may  show  accord  and  satisfac- 
tion in  defence  ;  that  is  to  say,  he  may  prove  that  an 
agreement  for  indemnity  made  out  of  court  has  been 
fulfilled.  But  a  bare  expression  of  satisfaction,  where 
a  retraction  and  apology  have  been  made,  would  not 
amount  to  a  release  of  the  right  of  action.1 

It  is  competent,  of  course,  for  the  defendant  to  show 
that  he  did  not  participate,  either  actually  or  construc- 
tively, in  the  publication  ;  but  the  editor,  publisher,  or 
proprietor  of  a  newspaper  will  not  be  permitted  to 
defend  himself  in  a  civil  action  by  showing  that  he  knew 
nothing  of  the  libel  until  after  it  was  published.  This 
is  according  to  the  legal  doctrine  of  respondeat  superior, 
under  which  a  principal  is  held  responsible  for  all  acts 
performed  by  the  agent  within  the  scope  of  the  authority 
given  him  by  the  principal.2  In  a  prosecution  for 
criminal  libel,  however,  the  editor,  publisher,  or  pro 
prietor  may  show  in  defence  that  the  libel  was  pub- 
lished against  his  express  orders,  or  in  his  absence, 
provided  circumstances  rendered  it  impossible  for  him 
to  prevent  the  publication;  or  he  may  show  in  defence 
that  the  subordinate  who  caused  the  libellous  publi- 
cation was  acting  out  of  the  course  of  his  employment, 
or  that  he  practised  some  deceit  or  fraud  upon  his 
employer/' 

1  Tresca  v.  Maddox  (the  Crescent),  11  La.  Annual  Reports  (1856),  208. 

2  See  pp.  S3,  136. 

3  Greenleaf  on  Evidence,  vol.  III.,  §  178. 


250  NEWSPAPER   LIBEL. 


CHAPTER   X. 

DAMAGES. 

Injury  is  a  presumption   of   law  where  a  suit  for 
libel   is  based  upon  a  publication  which   is   false  and 
defamatory;  accordingly  it  is  not  generally  necessary 
for  the  plaintiff  to  show  that  he  has  suffered  any  actual 
injury,   and    the    jury   may  award  substantial  damages 
even  if  there  is  no  evidence  of  loss  either  to  the  plain- 
tiff's  property  or  to   his    reputation.     It  is  necessary, 
however,  for  the  plaintiff  to  allege  in  his  declaration 
the  amount  which  he  claims  to  have  been  injured,  and 
he  cannot  recover  a  larger  sum    in   damages  than  the 
amount  so  alleged.     Plaintiffs  generally  take    care  to 
make  their  claim  of  damages  sufficiently  large,  a  ten- 
dency which  is  illustrated  by  the  case  of  James  Fisk,  Jr., 
referred    to   in    Hudson's   "Journalism    in   the   United 
States":1    "He  opened  with  a   libel  suit  for  $100,000 
against  Mr.  Bowles  of  the   Springfield  Republican,  and 
he  quickly  followed  it  up  by  another  against  Mr.  Gree- 
ley, of  the   Tribune,  for  a  like  sum;  then  against  Mr. 
Norvell,  of  the  Times,  claiming  another  $100,000,  and 
finally  against  Mr.  Raymond  for  the  snug  amount  of    a 
round  million."     So   long  as  the   amount  of  damages 
claimed  by  the  plaintiff  is  not  exceeded,  the  damages 
which  may   be  awarded    are    limited   only  by  the  dis- 
cretion of  the  jury,  subject  to  the  granting  of  a  new 

1  Page  747. 


DAMAGES. 


251 


trial  if  the  jury  return  a  verdict  for  punitive  damages 
in  a  case  where  such  damages  are  not  legally  recov- 
erable, or  if  they  award  damages  which  are  grossly 
excessive. 

While  injury  is  a  presumption  of  law,  the  same  injury 
is  not  presumed  in  the  case  of  a  person  of  disparaged 
fame  as  in  the  case  of  one  of  good  standing  in  the 
community.  In  the  case  of  William  H.  Whitney  v. 
the  Janesville,  Wis.,  Gazette,  the  Court  remarked  :  "  The 
defendants  may  show  that  the  plaintiff's  reputation  has 
sustained  no  injury,  because  he  had  no  reputation  to 
lose."  In  this  case  the  suit  was  based  upon  an  article 
published  January  24,  1871,  and  headed  "  A  Desperate 
Assault  on  a  Peaceable  Citizen."  The  plaintiff  was 
referred  to  in  this  article  as  a  professional  swindler. 
In  spite  of  the  privilege  which  the  Court  gave  to  the 
defendants,  of  showing  that  Mr.  Whitney  had  no  repu- 
tation to  lose,  the  jury  awarded  the  latter  $1,100.' 

It  does  not  follow,  because  the  plaintiff  has  utterly 
lost  his  reputation,  that  evidence  of  such  loss  is  a  com- 
plete defence.  The  evidence  can  only  be  received  in 
mitigation.  In  every  case  where  the  language  is  false 
and  not  privileged,  and  where  it  is  prima  facie  libellous, 
the  plaintiff  is  entitled  to  at  least  nominal  damages. 
It  does  not  matter  that  the  plaintiff  has  lost  his  good 
reputation  unjustly ;  he  has  no  right  to  more  than 
nominal  damages  against  one  who  has  not  contributed 
to  his  loss.-  Where  evidence  is  given  of  the  plaintiff's 
bad  reputation,  it  must  refer  strictly  to  the  time  of  the 
libellous  publication.  If  evidence  were  admitted  of  his 
reputation  at  a  later  time,  it  might  be  that  his  impaired 

1  Whitney  v.  Janesville  Gazette,  5  Bissell's  U.  S.  Circuit  Court  Reports,  330. 
?  Odgers  on  Libel  and  Slander,  p.  305,  note. 


2-2  NEWSPAPER   LIBEL. 


■3 


reputation  at  that  time  was  a  result  of  the  very  libel  for 
which  he  sued. 

Whether  it  can  be  proved  that  the  plaintiff  enjoyed 
high  social  standing,  for  the  purpose  of  enhancing 
damages,  is  a  question  not  entirely  settled.  It  has 
been  held  that  such  evidence  is  admissible  in  Penn- 
sylvania, Ohio,  Illinois,  Missouri,  Iowa,  Maine,  and 
Georgia,  but  the  contrary  is  maintained  in  New  York.1 
In  an  earlier  New  York  case,  however,  it  was  held  that 
evidence  of  the  public  character  of  the  plaintiff  as  an 
officer  of  the  government  might  go  to  the  jury  for  the 
purpose  of  increasing  the  damages.2  The  libel  in  this 
latter  case  was  an  article  published  in  the  Republican 
Watch  Tower,  July  17,  1805,  referring  to  "the  conniving 
of  a  secretary  or  treasurer  of  the  State,  or  any  higher 
official  character,  at  the  bribing  of  no  inconsiderable 
portion  of  the  Legislature."  The  jury  awarded  the 
plaintiff  $800.  While  in  many  States  the  plaintiff's 
social  standing  may  be  proved  for  the  enhancement 
of  damages,  the  plaintiff  cannot  give  evidence  of  his 
general  good  character  with  a  view  to  increasing  the 
damages,  unless  the  defendant  has  attacked  his  char- 
acter, for  there  is  a  legal  presumption  that  his  character 
is  good  until  the  contrary  is  shown,  but  there  is  no  such 
presumption  in  the  case  of  his  social  standing. 

In  the  case  of  Alice  A.  Early  v.  Wilbur  F.  Storey,  of 
the  Chicago  Times,2  the  Court  held  that  where  the 
facts  do  not  warrant  the  award  of  punitive  damages, 
the  jury  have  no  right  to  consider  the  wealth  and 
standing  of  the  defendant  as  affecting  the  amount  of 

1  Marie  Prescott  v.  Sinclair  Tousey,  president,  etc.,  50  N.  Y.  Superior  Court 
Reports  (1884),  12. 

2  Tillotson  v.  Cheetham,  3  Johnson,  56. 

3  86  111.  (1877),  461. 


DAMAGES.  253 

the  verdict.  But  where  the  damages  may  be  punitive, 
and  not  merely  compensatory,  evidence  may  be  given 
of  the  defendant's  wealth;1  otherwise  the  jury  could 
not  determine  what  amount  of  damages  would  carry  a 
just  degree  of  punishment.  The  defendant  cannot, 
however,  give  evidence  of  his  poverty  in  mitigation  of 
damages. 

Where  the  libel  warrants  only  compensatory  damages, 
the  question  for  the  jury  is,  how  much  had  the  plaintiff 
been  injured  by  it.  In  the  case  of  Marie  Prescott 
v.  Sinclair  Tousey,  of  the  American  News  Company, 
for  circulating  a  libel  published  in  Nym  Crinkle,  the 
judge,  in  charging  the  jury,  said  that  a  good  way  for 
them  to  determine  the  amount  of  damages  to  award 
was  to  determine  what  sum  they  would  consider  fair 
compensation  for  a  similar  libel  published  against 
themselves.  The  Court  at  general  term  held  that  this 
instruction  was  error  :  the  only  question  was,  how  much 
the  plaintiff  had  been  injured,  for  the  same  libel  might 
injure  one  of  the  jurymen  more  or  less  than  it  did 
Marie  Prescott.'2 

A  libel  which  contains  several  defamatory  charges 
may  be  justified  in  part  by  showing  the  truth  of  some 
of  the  charges,  and  such  partial  justification  will  tend 
in  mitigation  of  damages.  And  where  the  libel  con- 
sists in  a  charge  of  crime,  if  the  defendant  fails  strictly 
to  establish  the  truth  of  the  charge,  evidence  tending 
to  show  that  the  charge  was  well  founded  will,  neverthe- 
less, be  received  in  mitigation.  On  the  other  hand,  an 
unsuccessful  attempt  at  justification  of  the  libel  has,  in 

1  Eliza  P.  Buckley  v.  John  Knapp  ct  a/.  (St.  Louis  Republican),  48  Mo. 
(1871),  152. 

2  Prescott  v.  Tousey,  50  N.  V.  Superior  Court  Reports  (1884),  12. 

12 


254  NEWSPAPER   LIBEL. 

many  cases,  been  held  to  be  an  aggravation  of  the 
offence,  tending  to  enhance  the  damages,  as  showing 
actual  malice.1  But  this  is  a  point  upon  which  the 
courts  are  not  altogether  agreed,  and  in  some  States,  by 
statute,  an  unsustained  plea  of  justification  is  not  proof 
of  malice,  and  will  not  furnish  grounds  for  punitive 
damages. 

It  has  even  been  held  that  the  damages  may  be  en- 
hanced by  the  language  used  by  the  defendant's  counsel 
during  the  trial,  if  defamatory  of  the  plaintiff.     Charles 
Readly,  a  young  Englishman,  died  in  his  bed  at  a  hotel 
in   Antwerp,  March  30,   1865,  from  a  gunshot  wound. 
His  step-father,  Risk  Allah  Bey,  was  arrested  and  tried 
on  a  charge   of   murdering  the  boy.     It    appeared  in 
evidence  that  under  the  terms  of  the  marriage  contract 
with  his  late  wife,  Risk  Allah  would  come  into  posses- 
sion of  ^"5,000  in  case  of  the  death  of  the  boy  during 
his  minority.     The  defence  undertook  to  show  that  the 
boy  died  by  his  own   hand,  and  the  prisoner  was  ac- 
quitted.   The  London  Daily  lelegraph  published  letters 
from  its  correspondent  at  Brussels,  during  the  trial,  and 
an  editorial  at  its  close,  in  which  the  verdict  of  acquittal 
was  impugned  and  charges  of  forgery  and  fraud  made 
against   the  prisoner.     Risk   Allah   thereupon  brought 
suit  for  libel.     At  the  trial  of  the  libel  action  the  plain- 
tiff was   rigidly  cross-examined,   with    a  view  to   show 
that,  despite  his   acquittal,  he  was  in  fact  guilty  of  the 
murder.     The  Court  held  that  such  cross-examination 
aggravated  the  libel  and  warranted  increased  damages. 
A  verdict  for  ^960  was  rendered.2 

1  Jacob  Downing  v.  Henry  C.  Brown  (Denver  Tribune,  Dec.  27,  29,  1873), 
3  Col.  571. 

-  Risk  Allah  Bey  v.  Whitehurst  ct  al.,  18  Law  Times  Reports  (new  series, 
1868),  615. 


DAMAGES. 


255 


The  Toronto  Mail,  December  8,  18S4,  contained 
an  article  entitled  "  Improved  Methods,"  in  which 
Hon.  Rudolphe  Larlamme,  ex-Minister  of  Justice,  was 
charged  with  tampering  with  ballot-boxes  at  an  election 
in  1878.  His  suit  against  the  Mail  was  defended  on 
the  ground  that  the  charge  was  true.  The  defendant 
also  pleaded  that  while  the  plaintiff  "  held  the  office  of 
Minister  of  Justice,  he  was  grossly  incompetent  for  said 
office,  and  signally  failed  in  the  discharge  of  his  duties 
in  respect  to  such  office,  and  in  fact  grossly  neglected 
the  same,  and  rendered  himself,  by  drunkenness,  dissi- 
pated habits,  and  otherwise,  unfit  for  the  discharge  of 
his  duties  as  Minister  of  Justice  for  the  Dominion  of 
Canada."  A  supplementary  demand  for  damages  was 
entered  on  account  of  this  plea,  and  the  case  went  to 
trial.  The  jury  returned  a  verdict  in  favor  of  the  plain- 
tiff for  $6,000  on  account  of  the  libellous  article  in  the 
Mail,  and  a  further  verdict  for  $4,000  on  account  of  the 
language  contained  in  the  defendant's  pleadings.1 

Under  the  decisions  of  the  courts,  punitive  damages 
may  be  awarded  wherever  there  is  evidence  of  actual 
malice  on  the  part  of  the  defendant  toward  the  plaintiff. 
But  even  where  there  is  evidence  that  the  publisher  of 
the  libel  was  actuated  by  express  malice,  it  is  for  the 
jury  and  not  for  the  Court  to  determine  whether  puni- 
tive damages  shall  be  paid.-  Actual  malice  may  be 
inferred  from  the  nature  of  the  libellous  words  them- 
selves. Malice  is  conclusively  shown  by  evidence  that 
the  writer  or  publisher  of  the  libel  knew  that  the  charge 
was  false,  and  it  is  inferred  if  he  had  no  reason  to  be- 

1  See  the  Montreal  Herald,  Jan.  19,  1806. 

2  W.  H.  Hope  7'.  L.  &  W.  Neeb  (Pittsburg  Freiheits  Freund,  Jan.  20, 
1883),  in  Pa.  State  Reports,  145. 


256 


NEWSPAPER   LIBEL. 


lieve  that  the  charge  was  true.  Where  no  actual  malice 
is  shown,  gross  negligence  on  the  part  of  the  proprietor 
of  a  newspaper  in  the  conduct  of  his  business  will  tend 
to  aggravate  the  damages.  If  suit  is  brought  against 
two  defendants,  the  actual  malice  of  one  will  not  in- 
crease the  damages  against  the  other;  nor  will  the 
actual  malice  of  an  employee  or  agent  generally  sustain 
punitive  damages  against  the  employer  or  principal. 

In  a  suit  against  the  publishers  of  the  Milwaukee 
Evening  Wisconsin}  the  Court  held  that  if  the  publica- 
tion of  a  libel  in  a  newspaper  was  without  actual  malice, 
the  publisher  cannot  be  held  responsible  for  the  hatred 
or  malice  of  a  person  not  in  his  employ  from  whom  the 
reporter  who  wrote  the  libellous  article  obtained  his  in- 
formation. And  in  an  earlier  case  against  the  same 
defendants,  it  was  held  that  where  malice  is  shown 
against  an  employee  only,  the  publishers  are  not  liable 
in  punitive  damages.2  The  latter  case  grew  out  of  the 
publication,  May  27,  1878,  of  the  following:  — 

He  Wanted  Fees.  —  Some  charges  of  irregularity 
alleged  against  the  ex-sealer  of  weights  and  measures.  — 
...  It  is  charged  against  Eviston  that  he  deliberately  made 
a  practice  of  tampering  with  the  weights  of  scales  in  order 
to  swell  the  fees  of  the  office.  .  .  . 

The  jury  having  awarded  a  verdict  for  $2,000,  which 
was  in  excess  of  the  actual  damages  proved,  a  new  trial 
was  granted. 

The  Pittsburg  Commercial  Gazette  published  in  its 
column  of  "Editorial  Etchings,"  February  1,  1882,  the 
following  paragraph  :  — 

David  D.  Bruce,  Esq.,«  informs   reporters   that  he  con- 

'  Bradley  -■.  Cramer  et  at.,  66  Wis.  (1886),  297. 
'  Eviston  v.  Cramer  et  a!.,  57  Wis.  (1883),  570. 


DAMAGES. 


257 


siders  it  unprofessional  for  him  to  open  his  mouth,  except 
he  sees  or  smells  a  fee  somewhere.  The  query  naturally 
arises  in  the  mind  of  the  reader,  Who  pays  him  for  his  lengthy 
disquisitions  in  Council?  He  must  realize  a  splendid  in- 
come from  that  source  if  he  carries  out  his  principles  there 
as  sedulously  as  he  assumes  to  do  with  reporters.  Fortu- 
nately for  the  public,  there  are  other  lawyers  whose  views  of 
professional  etiquette  do  not  coincide  with  those  of  Mr. 
Kruce. 

The  editor  who  wrote  the  libellous  "etching  "  was  a 
Dr.  Palmer,  and  he  was  discharged  by  the  publishers 
for  writing  it,  and  died  before  the  trial.  The  publishers 
also  published  a  retraction  on  the  day  after  the  libel 
appeared.  At  the  trial,  the  Court  charged  the  jury  that  it 
the  defendants  (the  publishers)  had  no  personal  knowl- 
edge of  the  article  before  it  was  issued,  and  afterwards, 
in  good  faith,  did  what  was  reasonable  to  make  amends, 
it  was  not  a  case  for  punitive  damages.  The  jury 
awarded  a  verdict  for  $270.  The  Supreme  Court 
granted  a  new  trial,  on  the  ground  that  the  jury  were 
wrongly  instructed,  and  that  the  plaintiff  was  en- 
titled to  punitive  damages.1  This  case,  and  that  of 
Eviston  v.  Cramer,  are  manifestly  in  conflict.  The  two 
cases  represent  the  extremes  between  which  the  deci- 
sions of  different  courts  will  be  found. 

Whether  subsequent  publications  in  the  paper  in 
which  the  libel  appeared  can  be  introduced  in  evidence 
for  the  purpose  of  showing  actual  malice  and  securing 
punitive  damages,  is  a  question  not  altogether  settled.  It 
was  held  in  the  case  of  William  McBee  v.  the  Baltimore 
American  ~  that  such  evidence   is   admissible,   but  the 

1  Bruce  ik  Reed  et  al.,  104  Pa.  State  Reports,  408. 

-  William  McBee  r.  C.  C.  Fulton  et  al.,  47  Md.  (1878),  427.  See  also  the 
case  of  Edwin  Gribble  v.  Pioneer  Press  Co.,  34  Minn.  (1885),  342. 


258  NEWSPAPER   LIBEL. 

contrary  was  maintained  in  a  case  in  Tennessee.1  In 
the  latter  case,  the  libel  was  contained  in  a  speech  pub- 
lished in  the  Kno.wille  Sunday.  Whig  and  Register,  Sep- 
tember 4,  1870.  Mr.  Baxter,  the  plaintiff,  had  been 
complainant  in  a  case  against  Gen.  Joseph  A.  Mabry, 
in  the  Chancery  Court.  At  the  trial  in  chancery,  Gen. 
Mabry  began  to  deliver  a  speech  bitterly  denouncing 
Mr.  Baxter  and  his  family,  but  he  was  interrupted  by 
the  chancellor,  who  refused  to  allow  him  to  continue. 
The  general  thereupon  had  his  speech  published  in  the 
Whig  and  Register  as  an  advertisement,  and  for  this 
publication  Mr.  Baxter  brought  suit  against  both  Gen. 
Mabry  and  the  publishers  of  the  newspaper.  After 
these  suits  were  begun,  the  Whig  and  Register  published 
the  following  :  — 


'£> 


Another  Unfortunate  Editor. —  From  the  article 
we  copy  below  from  the  Cincinnati  Enquirer,  it  will  be  seen 
another  editor  has  put  his  foot  in  it  for  #50,000  damages, 
and  the  fund  will  now  swell  to  #400,000  !  ! !  The  Enquirer 
of  Monday  says  :  — 

A  Col.  Baxter  of  Tennessee  had  a  considerable  amount 
of  character  to  dispose  of  and  managed  to  get  himself 
libelled.  He  has  brought  suit  against  the  following  papers 
and  persons  :  Nashville  Banner,  550,000;  Union  and  Amer- 
ican, #50,000;  Athens  Post,  #50,000;  Sweet  Water  Enter- 
prise, #50,000;  Knoxville  Whig  and  Register,  #50,000;  Jo- 
seph A.  Mabry,  #50,000.  If  Col.  Baxter  gets  paid  for  the 
amount  of  his  damages,  he  will  have  #350,000  —  a  very  com- 
fortable sum.  But  if  he  has  any  character  left,  he  had  better 
keep  it.  He  cannot  afford  to  dispose  of  much  more  even  at 
the  highest  market  price. 

At  the  trial  in  the  Circuit  Court,  this  publication  in 
the  Whig  and  Register  was    admitted  in  evidence,  as 

1  John  Baxter  v.  Rolfe  S.  Saunders  et  at.,  6  Heiskell,  369. 


DAMAGES.  2^9 

tending  to  show  actual  malice,  and  the  jury  returned  a 
verdict  in  favor  of  Mr.  Baxter  for  $27,000.  The  Su- 
preme Court  set  this  verdict  aside,  and,  in  granting  a 
new  trial,  said  that  a  subsequent  publication  cannot  be 
received  in  evidence  unless  it  be  an  explanation  or  con- 
fession, or  an  express  admission  of  the  malicious  intent 
of  the  defendant.  In  other  words,  evidence  that  the 
defendant  entertains  a  feeling  of  actual  malice  now  is 
not  evidence  that  he  was  actuated  by  express  malice  a 
month  ago.  It  is  the  general  rule  in  other  States,  how- 
ever, that  evidence  of  subsecpient  publications  may  be 
introduced  to  prove  malice,  when  the  later  publication 
relates  to  the  earlier  ;  but  such  later  publication  is  ad- 
mitted only  for  the  purpose  of  showing  that  the  earlier 
was  published  with  a  malicious  motive,  and  inasmu*  h 
as  the  second  publication,  if  libellous,  may  be  the  ground 
of  a  separate  action,  the  jury  should  be  cautioned  not 
to  award  any  damages  on  account  of  it. 

Where  a  publication  is  libellous  per  se,  and  is  proved 
to  be  false,  punitive  damages  may  be  awarded  without 
further  evidence  of  malice.  The  New  York  Court  of 
Appeals  so  held  in  the  case  of  Rudolph  Bergmann  v. 
George  Jones,  a  suit  growing  out  of  the  publication  in 
the  New  York  Times,  March  12,  1881,  of  a  report  of  an 
officer's  search  in  the  cellar  of  a  grocery  in  Guttenberg, 
N.  J.     The  report  concluded  as  follows:  — 

While  feeling  around  in  the  water,  his  hand  came  in  con- 
tact with  what  he  believes  to  have  been  a  human  arm,  and 
afterwards  with  teeth,  which  he  judges  were  those  of  a  human 
being.  .  .  .  Bergmann's  neighbors  now  recall  the  fact  that 
a  year  ago  a  man  who  boarded  with  Bergmann  strangely  dis- 
appeared, and  a  few  days  later  his  grocery  was  replenished 
with  a  new  stock. 


26o  NEWSPAPER   EI  EEL. 

Bergmann  sued  for  $25,000,  and  recovered  a  verdict 
for  $500,  which  was  sustained.1 

Evidence  of  previous  libels  against  the  plaintiff  pub- 
lished by  the  defendant,  or  of  the  repetition  of  the 
libel  upon  which  suit  is  based,  may  be  received  to  en- 
hance damages,  or  to  show  malice  where  the  defendant 
claims  that  the  publication  is  privileged.  The  plaintiff 
cannot,  however,  show  actual  malice  on  the  part  of  the 
defendant  by  evidence  that  the  latter  has  published 
libels  upon  others,  unless  such  libels  are  closely  con- 
nected with  the  libel  for  which  suit  is  pending.  This 
is  the  law  upon  this  subject  as  generally  maintained ; 
but  in  a  case  tried  in  the  United  States  Circuit  Court 
in  Ohio,  it  was  held  that  libellous  matter  published  in 
the  same  paper,  and  referring  to  other  parties,  may  be 
put  in  evidence  to  prove  that  the  management  of  the 
paper  showed  want  of  care  in  guarding  its  columns 
against  the  insertion  of  such  matter,  and  that  such  evi- 
dence will  warrant  punitive  damages.2 

By  statute  in  Connecticut/'  "  unless  the  plaintiff  shall 
prove  either  malice  in  fact,  or  that  the  defendant,  after 
having  been  requested  by  him  in  writing  to  retract  the 
libellous  charge  in  as  public  a  manner  as  that  in  which 
it  was  made,  failed  to  do  so  within  a  reasonable  time, 
he  shall  recover  nothing  but  such  actual  damage  as  he 

1  94  N.  V.  51.  At  the  annual  meeting  of  the  Michigan  Press  Association, 
May  31,  1888,  it  was  resolved  that  it  would  be  unjust  to  the  press  to  support 
any  candidate  for  the  Legislature  who  would  not  pledge  himself  to  support  a  bill 
providing,  among  other  things,  that,  in  libel  actions,  "  malice,  in  the  sense  of  a 
desire  or  design  to  commit  injury,  shall  be  proved,  or  a  probable  ground  for  its 
existence  established  by  evidence,  before  any  question  of  exemplary  damages 
will  lie."     See  the  Detroit  Journal,  June  i,  1888. 

2  Gibson  v.  the  Cincinnati  Enquirer,  2  U.  S.  Courts  Reports  (Sixth  circuit, 
1877),  121. 

3  General  Statutes,  p.  445,  sec.  2. 


DAMAGES.  261 

may  have  specially  alleged  and  proved."     Statutes,  in 
some  respects  similar,  have  been  passed  in  Minnesota, 
Michigan,  Virginia,  West  Virginia,  and  Alabama.     "  Act- 
ual damages  "  are  defined  by  statute  in  Michigan   and 
Minnesota  as  including  "all  damages  the  plaintiff  may 
show  he  has  suffered  in  respect  to  his  property,  business, 
trade,  profession,  or  occupation,  and  no  other  damages." 
Mitigation  may  be  shown  by  evidence  that  the  libel 
was  provoked  by  the  plaintiff's  own  conduct,  but  such 
provocation  must  have  been  direct  and  immediate.     It 
is  also  mitigation  to  show  that  the  publication  was  made 
under  a  mistake,  which  was  at  once  corrected,  or  that 
the  charges  were  generally  reported  to  be  true,  or  that 
the   libellous   matter  was   copied    in   good   faith   from 
another  paper,   in  belief  of  its  truth.1     Evidence  that 
the  plaintiff  has  the  general  reputation  of  being  a  com- 
mon libeller,  or  that  the  loss  sustained  by  the  plaintiff 
by  reason  of  the  libel  was  small,  may  be  introduced  for 
the    same   purpose.     Punitive    damages    may   also   be 
avoided  by  reading  in  evidence   portions  of  the  same 
publication  which  contains  the  libel,  not  relied  on  by 
the  plaintiff  to  maintain  his  case,  provided  they  qualify 
the  libel   in  such  manner  as  to  disprove  actual  malice. 
Ellis   H.   Roberts  &  Co.,  proprietors  of   the   Utica, 
N.  Y.,  Morning  Herald  and  Gazette,  were  sued  by  Thomas 
E.  Kinney  on  account  of  the  publication,  October  28, 
1880,  of  an  article  charging  Kinney,  who  was  a  candi- 
date for  county  judge,  with  having  been  a  Confederate 
spy  during  the  Rebellion,  and,  as  such,  imprisoned  four- 
teen months  within  the  Union  lines.     The  proprietors 
of  the  paper  pleaded  in  mitigation  of  damages  that  the 

1  Greenleaf  on  Evidence,  vol.  II.,  §  424.     George  Hewitt  v.  St.  Paul  Pioneer 
Press  Co.,  23  Minn.  (1876),  178. 

12* 


262  NEWSPAPER   LIBEL. 

charges  were  partially  true,  and  submitted  certain  in- 
terrogatories to  be  answered  by  Mr.  Kinney,  with  a 
view  to  learning  his  movements  at  a  certain  time  during 
the  war.  The  Court  held,  however,  that  to  mitigate 
damages  the  facts  must  have  been  known  to  the  defend- 
ants at  the  time  of  the  publication.1  And  in  a  later 
case  in  Minnesota  it  was  held  that  it  was  not  admissible 
in  mitigation  of  damages  to  show  that  it  was  the  general 
opinion  of  the  community  that  the  libellous  charge  was 
true,  unless  such  opinion  had  been  believed  in  and  relied 
on  by  the  defendant  in  making  the  publication.-  It  is 
only  where  facts  are  introduced  in  evidence  in  mitigation 
that  they  must  have  been  known  to  the  defendant  at  the 
time  when  the  libel  was  published.  When  the  truth  is 
pleaded  as  a  complete  defence,  it  is  immaterial  that  the 
defendant  supposed  the  matter  to  be  false  at  the  time 
when  he  published  it. 

In  the  course  of  a  controversy  regarding  their  relative 
circulation,  between  the  Daily  Press  and  the  Chronicle 
and  Sentinel^  both  of  Augusta,  Ga.,  charges  and  counter- 
charges of  theft,  duplicity,  and  perjury  were  made  by 
various  employees  of  the  two  papers.  Finally,  the  Press 
published  the  following  regarding  Jerry  McCarty,  who 
was  employed  in  the  mailing  department  of  the  other 
paper : — 

We  have  no  reply  to  make  to  the  statement  of  a  lad  who 
is  convicted  of  perjury  by  the  solemn  oath  of  a  gentleman 
whose  veracity  stands  unimpeached  and  unimpeachable. 

Jerry  thereupon  brought  suit  for  damages,  and  at  the 
first  trial  recovered  a  verdict  for  $5,000.  This  verdict 
was  set  aside  upon  appeal,  and  at  the  second  trial  the 

1  Kinney  v   Roberts  ft  al.,  33  N.  Y.  Supreme  Court  Reports,  166. 
-  Frank  D.  Larrabee  v.  Minnesota  Tribune  Co.,  36  Minn.  (1886),  141. 


DAMAGES.  263 

verdict  was  $2,500.  A  new  trial  was  then  granted  by 
the  Supreme  Court,  upon  the  ground  that  where  the 
defamation  is  published  in  the  course  of  a  series  of 
mutual  libels,  a  plaintiff  is  entitled  to  nominal  damages 
only.1 

The  case  of  Beardsley  v.  Maynard,2  in  New  York, 
also  grew  out  of  a  "  newspaper  war."  Mr.  Beardsley, 
who  was  United  States  district  attorney  for  the  North- 
ern district  of  New  York,  conducted  his  side  of  the 
conflict  for  three  months  in  the  columns  of  the  Oneida 
Obsemer,  published  at  Utica,  and  Mr.  Maynard  carried 
on  his  campaign  in  the  Utica  Sentinel  and  Gazette.  The 
district  attorney,  thinking  perhaps  that  he  was  getting 
the  worst  of  the  fight,  appealed  to  the  courts,  and 
recovered  a  verdict  for  $446,  the  Court  holding  that  a 
defendant  cannot  give  evidence  of  a  previous  defama- 
tory publication  against  him  by  the  plaintiff  in  mitigation, 
unless  the  libel  upon  which  suit  is  based  was  published 
as  a  result  of  such  previous  publication  and  in  answer 
to  it.  The  libellous  reply  must  also  be  close  in  point 
of  time  ;  and  in  this  case  it  was  held  that  where  the  de- 
fendant waited  three  days  before  publishing  his  reply, 
the  delay  was  too  long  to  entitle  him  to  mitigation  of 
damages  on  the  ground  of  provocation.  The  proper 
remedy  would  be  by  cross  action. 

In  a  case  against  the  Chicago  Times  it  was  held  that 
the  defendant  might  show  in  mitigation  that  he  had 
received  certain  forged  letters,  purporting  to  have  been 
written  by  reputable  citizens,  in  which  the  same 
charges  were  made  as  were  contained  in  the  libel.    The 

1  Jerry  McCarty  v.  E.  H.  Pugh,  40  Ga.  (1869),  444. 

-  4  Wendell  (N.  Y.  Supreme  Court,  1830),  336  ;  7  Wendell  (Court  of  Errors, 
1830,560. 


264  NEWSPAPER   LIBEL. 

receipt   of  such  letters  would  tend  to   disprove  actual 
malice.1 

Retraction,  if  prompt  and  complete,  may  be  shown 
in  mitigation.  The  Chicago  Times,  September  8,  1868, 
published  the  following  in  a  report  of  the  sudden  death 
of  James  Wallace  in  a  fit  caused  by  excessive  drinking  :  — 

In  i86[  he  enlisted,  and  was  absent  three  years.  On  his 
return  he  was  astounded  to  find  an  infant  child  in  his  wife's 
arms  —  progeny  which  he  could  not  father. 

Mrs.  Mary  Wallace  called  at  the  Times  office  and 
asserted  that  she  was  the  wife  referred  to,  explaining 
that  her  husband  had  once  been  at  home  on  a  furlou°;h, 
and  that  the  legitimacy  of  the  child  was  well  established. 
She  demanded  of  the  city  editor  a  retraction,  and  it 
was  written,  whereupon  she  said  it  was  satisfactory,  and 
the  retraction  was  published.  Notwithstanding  this 
fact,  Mrs.  Wallace  brought  suit  against  Wilbur  F. 
Storey  et  al.  At  the  first  trial  she  recovered  a  verdict 
for  $3,850.  A  new  trial  was  granted,  at  which  the 
jury  disagreed,  and  at  the  third  trial  the  plaintiff  recov- 
ered a  verdict  for  $2,500.  The  judgment  at  the  third 
trial  was  sustained  by  the  Supreme  Court,  on  the 
ground  that  a  retraction  only  operates  in  mitigation  of 
damages,  and  that  an  expression  of  satisfaction  with  a 
retraction,  in  the  absence  of  an  express  agreement  to 
that  effect,  does  not  release  all  claim  for  damages. '- 

Retraction  after  the  commencement  of  the  action 
does  not  operate  in   mitigation.3     The  question  of  the 

1  Alice  A.  Early  -.■.  Wilbur  I'.  Storey,  86  111.  (1877),  461. 

-  Wallace  7'.  Storey  et  al.,  60  111.  51. 

:t  James  E.  Tryon  v.  the  Evening  News  Association,  42  Mich.  (1880),  549. 
"  The  rule  not  to  apologize  after  a  suit  has  been  begun  is  sound  and  wise.  So  is 
the  other  rule,  which  is  always  followed  in  the  Sun  office,  to  correct  an  error 
frankly  and  completely  as  soon  as  it  is  discovered,  and  before  any  threat  is 
made."    -  New  York  Sun,  May  29,  1887. 


DAMAGES. 


265 


sufficiency  of  a  retraction  or  apology,  and  whether  it 
is  full  and  ample  and  given  as  great  publicity  as  the 
original  libel,  is  always  to  be  submitted  to  the  jury  and 
not  decided  by  the  Court. 

Isaac  \V.  Edsall  brought  suit  against  James  Brooks 
et  a/.,  of  the  New  York  Evening  Express,  for  the  publi- 
cation of  the  following  paragraph  :  — 

Black-mailing  by  a  Policeman.  —  Isaac  W.  Edsall, 
of  the  Twenty-sixth  precinct,  City  Hall  police,  has  been  dis- 
missed from  the  police  department  by  the  commissioners* 
on  charges  of  black-mail  preferred  against  him  by  citizens  in 
three  distinct  cases. 

Mr.  Edsall  called  at  the  office  of  the  Express  and 
requested  the  city  editor  to  publish  a  retraction,  but 
his  request  was  denied.  The  Court  held  that  such 
refusal,  by  the  city  editor  of  the  paper,  to  publish  a 
retraction  did  not  tend  to  prove  that  the  animus  of 
the  proprietors  was  malicious,  and  therefore  did  not 
enhance  the  damages.1 

St.  Joseph.  —  Joseph  Hermann,  brickmaker,  is  in  the 
hands  of  the  sheriff. 

The  above  notice,  which  happened  to  be  untrue,  was 
printed  in  Bradstreefs,  August  5,  1882.  A  correction 
was  published,  but  it  was  not  published  promptly,  and 
the  offer  to  make  the  correction  was  coupled  with  con- 
ditions with  which  Mr.  Hermann  was  under  no  obliga- 
tion to  comply.  The  Court  held  that  the  words  were 
per  se  libellous,  and  that  the  jury  was  at  liberty  to  bring 
in  a  verdict  for  punitive  damages.2 

1  Edsall  7\  Brooks  et  a/.,  2  Robertson  (1864),  414;  33  Howard's  Practice 
Reports,  191.  Bradley  t>.  Cramer  et  al.  (Milwaukee  Evening  Wisconsin),  66 
Wis.  (1886),  297. 

'-'  Hermann  v.  the  Bradstreet  Co.,  19  Mo.  Appeal  Reports,  227. 


266  NEWSPAPER   LIBEL. 

A  fellow  styling  himself  John  W.  Lanius  is  travelling- 
through  the  country  soliciting  subscriptions  and  receiving 
money  on  our  account.  We  have  no  such  agent,  and  it  is 
unnecessary  to  say  that  none  of  the  money  collected  by  him 
finds  its  way  to  this  office. 

For  this  publication  in  the  National  Druggist,  January 
16,  1885,  Mr.  Lanius  recovered  a  verdict  for  $2,000. 
In  affirming  the  verdict,  the  higher  court  ruled  that 
evidence  which  shows  that  the  defendant  could  have 
ascertained  from  his  own  books  of  account  that  the 
statements  published  were  false,  justifies  an  instruction 
for  punitive  damages,  on  the  ground  of  gross  careless- 
ness and  recklessness.1 

Where  the  defendant  was  in  any  wise  concerned  in 
the  publication  of  the  libel,  he  cannot  show  in  mitigation 
that  he  was  not  the  author ;  neither  can  he  show  that  an 
action  is  pending  against  others  for  publishing  the  same 
libel.  It  has  also  been  held  that  in  an  action  for  defa- 
mation the  defendant  cannot  introduce  evidence  of  his 
own  bad  character  in  mitigation  of  damages,-  although, 
if  a  newspaper  has  a  bad  reputation  for  truth  and  reli- 
ability, the  injury  caused  by  a  libel  contained  in  it 
would  be  small.  Few  newspaper  publishers  would  be 
willing,  however,  to  introduce  such  evidence  in  mitiga- 
tion, even  if  it  were  admissible. 

It  is  not  admissible  in  mitigation  to  show  that  the 
libel  was  published  amid  the  excitement  of  a  political 
campaign.'* 

Courts  will  not  grant  new  trials  on  the  ground  of 
excessive  damages,  unless  the  damages  are  so  excessive 
as  to  furnish  evidence  of  passion,  prejudice,  or  corrup- 

1  Lanius  v.  Druggist  Publishing  Co.,  20  Mo.  Appeal  Reports,  12. 

"  Hastings  v.  Stetson,  130  Mass.  (1S81),  76.     This  was  an  action  for  slander. 

'■'■  Rearick  r1.  Wilcox  (Quincy  Whig),  81  111.  77.     (See  ante,  p.  217.) 


DAMAGES.  267 

tion  on  the  part  of  the  jury.  Among  many  cases  sus- 
taining this  position,  is  that  of  James  W.  Sweeney  v. 
Lewis  Bakers/  a/.,  of  the  Wheeling  Daily  Register.1  In 
this  case  a  verdict  for  $8,000  was  sustained,  the  suit 
being  based  upon  articles  charging  Mr.  Sweeney,  who 
was  a  candidate  for  the  House  of  Delegates,  with 
being  a  gambler  and  prize-fighter,  and  with  being 
ignorant  and  dishonest. 

Neither  will  a  new  trial  generally  be  granted  on  the 
ground  that  the  damages  are  inadequate.  The  Port- 
land, Me.,  Daily  Press,  September  24,  1875,  published 
the  following :  — 

Personal. — A  responsible  gentleman  of  Hallowell  in- 
forms us  that  Secretary  of  State  Stacy  was  recently  arrested 
in  that  city  for  drunkenness  and  disturbance.  A  ten  dollar 
note  quieted  the  affair. 

The  Secretary  of  State  brought  suit  for  damages, 
and  recovered  a  verdict  for  one  dollar,  whereupon  he 
appealed,  claiming  that  the  damages  were  inadequate. 
The  Supreme  Court  sustained  the  verdict,-  the  judge 
remarking,  "The  Court  rarely  interferes  with  a  verdict 
in  a  case  of  this  kind,  whether  moved  against  as  too 
large  or  too  small."     j; 

In  a  case  in  Wisconsin,  however,  where  a  jury  re- 
turned a  special  verdict,  finding  facts  which  would 
warrant  punitive  damages,  but  awarding  nominal  dam- 
ages only,  the  verdict  was  set  aside  as  inconsistent. 
The  libel  was  published  in  the  Milwaukee  Evening 
Wisconsin,  November  26,  1875,  an<^  was  as  follows  :  — 

The   Roman  Catholic  voters   spurn  the    appeals  of   this 

1 13  W.  Va.  (i878\  158. 

-  George  G.  Stacy  7'.  Portland  Publishing  Co.,  68  Me.  279. 


268  NEWSPAPER   LIBEL. 

dirty  reform   politician.     Cottrill  now  smells  so  badly  that 
decent  men  avoid  him  when  they  pass  him  in  the  street. 

It  appeared  that  the  plaintiff  was  a  lawyer  in  high 
standing  in  his  profession,  and  his  character  was  unim- 
peached.  The  jury  found  "that  the  article  was  written 
and  published  in  a  spirit  of  pure  wickedness,  with  ex- 
press malice,  and  with  the  intent  to  injure  the  plaintiff," 
but  they  awarded  the  plaintiff  only  six  cents  damages 
and  six  cents  costs,  and  a  new  trial  was  granted.1 

A  verdict  for  one  cent  or  one  dollar  is  frequently  called 
an  award  of  "  contemptuous  "  damages  An  example  of 
such  damages  is  furnished  by  the  case  of  Rev.  W.  \V. 
Hicks,  the  spiritual  adviser  of  Charles  Julius  Guiteau. 
Mr.  Hicks  brought  suit  against  the  Washington  Evening 
Star  for  the  publication  of  a  charge  that  he  had  sold  the 
assassin's  body  to  the  Army  Medical  Museum.  The 
amount  of  Mr.  Hicks'  claim  was  $35,000,  but  his  verdict 
was  only  one  cent.2  By  statute  in  Indiana  and  Kentucky 
it  is  provided  that  "  a  new  trial  shall  not  be  granted  on 
account  of  the  smallness  of  the  damages  in  actions  for 
an  injury  to  the  person  or  reputation."3  Juries  fre- 
quently award  damages  with  a  view  to  barely  carrying 
the  costs ;  but  the  cases  are  numerous  where  they  have 
been  rebuked  by  the  judges  for  taking  the  question  of 
costs  into  consideration. 

The  Indianapolis  Sun,  August  8,  1874,  published  the 
following  :  — 

It  is  positively  asserted  that  one  Horrell,  a  city  detective 
employed  by  the  city,  is  a  recently-released  penitentiary 
convict. 

1  Cottrill  v .  William  E.  Cramer  el  al.,  43  Wis.  242  ;  59  Wis.  231. 

'-  See  the  Washington  Evening  Star,  Nov.  13,  1885.  The  Canadian  Law 
Times  (Toronto,  July,  1886)  mentions  a  libel  case  where  a  verdict  was  rendered 
for  the  plaintiff  without  damages. 

3  Revised  Statutes  of  Indiana,  §  560;   Civil  Code  of  Kentucky,  §  341. 


DAMAGES.  269 

A  jury  brought  in  a  verdict  in  favor  of  Albert  J.  Hor- 
rell  for  $800,  and  the  defendant  moved  to  set  the 
verdict  aside,  on  the  ground  that  it  was  excessive  in 
amount.     The  verdict  was  sustained.1 

hi  the  Cincinnati  Enquirer  was  published  the  follow- 
ing paragraph  :  — 

Still  Another.  —  The  new  city  of  Huntington,  up  the 
river,  is  now  enjoying  one  of  the  juiciest  crhn.  con.  scandals 
of  the  day.  The  parties  are  one  Gibson,  a  Republican 
editor,  and  the  wife  of  a  railroad  official  at  Huntington, 
West  Virginia,  who  were  caught  in  flagrante  delicto  on  the 
steamer  Bostonia,  and  hustled  ashore  at  midnight  by  Captain 
Bryson. 

Mr.  Gibson  recovered  a  verdict  for  $3,875,  which  was 
sustained.2 

Eliza  P.  Buckley  recovered  a  verdict  for  $5,000  against 
the  St.  Louis  Republican  on  the  ground  of  a  charge  of 
unchastitv,  and  the  verdict  was  held  to  be  not  excessive.3 

The  Aroostook  Times,  of  Houlton,  Me.,  published  a 
series  of  articles,  January  13  and  March  12  and  13, 
1873,  charging  Llewellyn  Powers,  who  was  an  attorney 
anil  collector  of  customs,  with  attempting  to  seduce  a 
colored  servant,  and  with  dishonesty  in  business  mat- 
ters.    One  of  the   libels  contained  the  following  lan- 


■fc> 


guage  : 


Clients  have  been  cheated  in  ways  so  deft  and  adroit  as 
to  elicit  from  distinguished  brother  lawyers  while  comment- 
ing upon  them  the  praiseworthy  title  of  piracy. 

In  a  suit  against  Theodore  Cary,  proprietor  of  the 

1  Horrell  v.  the  Indianapolis  Sun  Co.,  53  Ind.  527. 

-  Gibson  v.  Cincinnati  Enquirer,  2  U.  S.  Courts  Reports  (Sixth  circuit, 
1877),  121. 

3  Eliza  P.  Buckley  v.  John  Knapp  et  a!.,  48  Mo.  (1871),  152. 


270  NEWSPAPER    LIBEL. 

Times,  it  was  held  by  the  Supreme  Court  that  a  verdict 
for  $5,508  was  not  excessive.1 

An  article  under  the  following  heading  was  published 
in  the  Detroit  Evening  News,  September  n,  1882  :  — 

Debauchery  axd  Ruin.  —  The  Sad  Story  of  a  Crazed 
Husband  and  Broken  Family  —  The  Wreck  of  a  Canadian 
TIo>;ic  Charged  to  a  Michigan  University  Professor. 

Donald  Maclean,  professor  of  surgery  in  the  university, 
brought  suit  for  damages,  although  he  was  not  named 
in  the  libel.  He  recovered  a  verdict  for  $20,000  against 
James  E.  Scripps,  proprietor  of  the  JVe?os,  and  the  ver- 
dict was  subsequently  fully  paid.  For  some  unknown 
reason  the  question  of  excessive  damages  was  not  raised 
in  the  lower  court  by  the  counsel  for  the  defendant,  and 
in  the  Supreme  Court,  where  the  judgment  was  affirmed, 
the  question  of  excessive  damages  could  not  be  raised 
under  the  Michigan  statute.2  It  is  believed  that  no 
other  case  is  to  be  found  in  the  American  law  reports 
where  so  large  a  verdict  has  been  recovered  and  paid. 

In  the  New  York  Herald,  October  31,  18S1,  was  pub- 
lished a  special  despatch  giving  the  details  of  a  fire 
which  nearly  destroyed  the  village  of  Edgefield,  S.  C. 
The  correspondent  stated  that  the  leading  citizens  of 
the  place  were  of  the  opinion  "'that  one  Malloy,  a  white 
man,  who  some  time  ago  was  suspected  of  burning  his 
own  store  for  the  purpose  of  obtaining  the  insurance, 
kindled  the  fire  which  resulted  so  disastrously,"  and 
concluded  by  saying  that  the  supposed  incendiary  was 
to  be  summarily  dealt  with  if  caught.  A  jury  awarded 
Mr.  Malloy  820,000  damages,  but  a  new  trial  was 
granted  on  the  ground  that  the  damages  were  excessive. 

1  Powers  v.  Cary,  64  Me.  9. 

2  Maclean  v.  Scripps,  52  Mich.  214. 


DAMAGES. 


27  1 


judge  Wallace,  of  the  United  States  Circuit  Court, 
said  :  "  The  original  publication,  although  its  sensational 
character  and  flagrant  mendacity  were  well  calculated 
to  outrage  the  feelings  of  the  plaintiff,  was  so  destitute 
of  a  color  of  truth  that  it  could  not  seriously  injure  him 
in  the  estimation  of  the  immediate  community  in  which 
he  lived."1 

Daniel  Leonard  Pratt,  a  physician,  sued  the  St.  Paul 
Pioneer  Press  for  the  publication,  July  6,  1881,  of  an 
article  headed  "  Culpable  Neglect,"  in  which  it  was 
stated  that  he  had  allowed  the  dead  body  of  a  child  to 
remain  in  a  house  where  it  had  died  while  under  his  care 
until  it  had  begun  to  decompose.  A  verdict  in  his 
favor  for  $2,000  was  set  aside  on  the  ground  that  it  was 
not  justified  by  the  evidence.-  At  a  second  trial  the 
jury  failed  to  agree;  and  at  a  third  trial  a  verdict  was 
returned  in  the  doctor's  favor  for  $5,000,  but  this  was 
set  aside  as  excessive.3  The  fourth  trial  resulted  in  a 
disagreement,  and  the  fifth,  in  a  verdict  for  the  plain- 
tiff for  $4,275.  Thereupon  the  defendant  moved  for  a 
sixth  trial.  The  Court  ordered  that  if  the  plaintiff  should 
accept  judgment  for  $2,000  the  defendant's  motion 
should  be  considered  as  denied,  otherwise  it  should  be 
considered  as  granted.  The  plaintiff  accepted  judg 
merit  for  the  smaller  sum,  and  the  defendant  appealed 
to  the  Supreme  Court,  where  the  order  of  the  lower 
court  was  affirmed.4  Thus  after  five  years  of  litigation 
a  somewhat  remarkable  case  came  to  an  end.  ft  cost 
the  Pioneer  Press  about  $5,800  to  publish  its  article  on 
"  Culpable  Neglect." 

1  Malloy  v.  Bennett,  15  Federal    Reporter,  37T. 
"  30  Minn.  (1882),  41. 

3  32  Minn.  (1884),  217. 

4  35  Minn.  (1886),  251. 


272 


NEWSPAPER   LIBEL. 


The  Toronto  Irish  Canadian  published  the  following 
in  a  letter  regarding  the  warden  of  the  Central  Prison  :  — 

How  long  will  a  just  God  allow  the  poor  wretches  sent  to 
the  Central  to  be  reformed  (not  debased  and  brutalized),  to 
suffer  the  tortures  of  the  damned  at  the  hands  of  this  fiend  ? 
Is  it  possible  that,  in  this  enlightened  age,  men  are  to  be 
driven  insane  by  the  tortures  of  this  modern  Nero? 

The  Court  ruled  that  the  writer  had  exceeded  the 
limits  of  privilege,  but  a  verdict  for  $8,000  was  deemed 
excessive,  and  was  cut  down  to  $i,ooo.1 

Generally  speaking,  it  is  not  necessary  for  the  plain- 
tiff in  a  suit  for  libel  to  allege  or  prove  any  "special 
damage";  that  is  to  say,  damage  or  injury  is  presumed 
by  law  to  follow  the  use  of  defamatory  language ; 
and  where  one's  reputation  is  injured,  it  is  immaterial 
whether  he  has  suffered  pecuniary  loss.  There  are 
certain  cases,  however,  where  special  damage  must  be 
proved.  Such  is  the  case  where  the  plaintiff  has  suf- 
fered loss  as  a  natural  and  proximate  consequence  of 
the  libel,  but  not  as  a  necessary  consequence  of  it.2 
In  still  another  class  of  cases,  where  the  plaintiff  has 
not  suffered  in  reputation,  but  where  the  direct  result 
of  the  libel  is  injury  to  his  pecuniary  interests,  the 
plaintiff  must  also  allege  and  prove  that  he  has  suffered 
special  damage.  A  case  in  point  is  that  of  Gott  P. 
Pulsifer  et  a/.,  already  cited.3 

Where  special  damage  is  shown,  the  damage  must  not 
be  too  remote.  In  the  case  of  Ashley  v.  Harrison  4  it 
was  shown  that  by  reason  of  the  publication  by  the 
defendant  of  a    libel  on    Gertrude    Mara,   a   singer  in 

1  Massie  v.  Toronto  Printing  Co.,  n  Ontario  (1886),  362. 

2  See  ante,  p.  156. 

■"  See  ante,  p.  202;  see  also  p.  164. 
4  1  'Espinasse  (Eng.  1793),  48. 


DAMAGES.  273 

oratorio,  Mme.  Mara  had  broken  her  engagement  to 
sing  at  the  plaintiff's  concerts,  fearing  that  she  should 
be  hissed.  The  manager  of  the  concerts  brought  suit 
for  damages  against  the  publisher  of  the  libel,  alleging 
that  the  size  of  the  audiences  had  diminished  on  account 
of  the  failure  of  Mme.  Mara  to  take  part  at  the  con- 
certs ;  but  the  Court  held  that  the  damages  were  too 
remote,  the  immediate  cause  of  the  plaintiff's  loss  being 
Mme.  Mara's  refusal  to  sing,  and  not  the  publication  of 
the  libel. 

To  aid  in  estimating  damages,  the  circulation  of  the 
newspaper  in  which  the  libel  was  published  may  be 
shown,  and  a  copy  of  the  newspaper  itself,  in  which  a 
large  circulation  is  claimed,  may  be  introduced  in  evi- 
dence for  this  purpose.1  Damages  may  be  enhanced, 
not  only  by  showing  the  large  circulation  of  the  paper, 
but  also  its  character  for  reliability,  as  affecting  the 
degree  of  credit  which  would  be  given  to  matter  pub- 
lished in  its  columns.2 

Each  publisher  of  a  libel,  including  the  writer,  is 
responsible  for  the  whole  damage  caused  by  it,  but  this 
responsibility  does  not  extend  to  a  subsequent  publi- 
cation in  another  newspaper  into  which  the  libellous 
matter  has  been  copied.  Unless  the  writer  or  original 
publisher  in  some  way  caused  the  repetition  of  the  libel 
in  the  second  newspaper,  the  damage  resulting  from  such 
repetition  is  too  remote  to  be  chargeable  against  him. 
As  has  been  elsewhere  shown,  a  defendant  who  has 
been  required  to  pay  damages  for  the  publication  of  a 
libel  cannot  recover  any  portion  of  such  damages  from 

1  Edward  P.  Fry  -'.  James  Gordon  Bennett  (New  York  Herald ',  Nov.  3, 
1848,  to  Feb.  n,  1849),  3  Bosworth,  201.  The  Herald's  circulation  at  that  time 
was  about  20,000.     Sec  also  the  Nebraska  statute  quoted  ante,  p.  96,  note. 

2  Alice  A.  Early  v.  Wilbur  F.  Storey  I  Chicago  Times),  86  111.  (1877),  461. 


2  74  NEWSPAPER   LIBEL. 

a  person  who  was  liable  jointly  with  him,  but  who  was 
not  sued.1  And  where  two  defendants  are  jointly  sued 
for  the  same  libel,  and  separate  verdicts  are  recovered 
against  them,  payment  by  one  defendant  operates  as  a 
satisfaction  of  the  judgment  against  the  other.  "  The 
reason  is,  that  however  numerous  may  be  the  doers  of 
the  tortious  act,  the  act  itself,  as  well  as  the  damage 
caused  by  it,  is  but  one  single  thing,  for  which  one 
single  payment,  by  whomsoever  of  the  trespassers 
made,  is  a  perfect  satisfaction."2 

The  jury  must  assess  the  damages  once  for  all,  and  a 
new  action  cannot  be  maintained  for  injuries  accruing 
after  the  original  action,  growing  out  of  the  same  libel. 
But,  as  has  been  stated,  every  sale  of  a  copy  of  the 
newspaper  gives  a  new  right  of  action  ;  and  if  the  pub- 
lisher continues  to  sell  copies  containing  the  libel,  after 
he  has  once  been  sued,  the  same  plaintiff  can  again 
bring  suit,  and  recover  a  new  verdict. 

Damages  which  the  writer  has  denominated  "  puni- 
tive "  have  been  variously  termed  by  law  writers,  "ex- 
emplary," "  retributory,"  and  "vindictive"  damages,  or 
"smart  money."  The  word  "vindictive"  perhaps  best 
describes  such  damages,  for  the  power  to  award  a  ver- 
dict which  shall  at  the  same  time  compensate  the  plain- 
tiff and  punish  the  defendant,  proves  too  often  a  ready 
means  of  gratifying  spite  on  the  part  of  a  prejudiced 
jury.  Indeed,  the  whole  principle  upon  which  punitive 
damages  are  based  seems  to  be  inherently  wrong.  The 
question  of  punishment  is  entirely  foreign  to  the  legiti- 
mate province  of  civil   actions.      The  criminal  courts 

1  See  p.  56. 

-  Celia  A.  Breslin  v.  Charles  F.  Peck  et  a/.,  22  N.  V.  Weekly  Digest  (X.  V. 
Supreme  Court,  1885),  377.     (See  ante,  p.  247.) 


DAMAGES. 


75 


are  maintained  for  the  sole  purpose  of  punishing  wrong- 
doing, and  if  a  libel  is  of  such  character  as  to  call  for 
the  imposing  of  a  penalty,  the  district  attorney  should 
take  cognizance  of  it,  as  of  any  other  offence  against 
the  law.  To  countenance  the  award  of  "punitive" 
damages  is  to  constitute  every  man  a  prosecuting  officer. 
to  grant  to  every  such  prosecuting  officer  the  fines  which 
shall  be  imposed,  and  to  offer  a  high  premium  on  litiga- 
tion. Punitive  damages  are  frequently  "vindictive  "  in 
fact  as  well  as  in  name,  but  when  the  law  becomes  an 
instrument  of  revenge,  it  ceases  to  be  a  means  of  jus- 
tice. The  proper  field  for  civil,  in  distinction  from 
criminal,  law  is  the  award  of  compensation  for  loss  or 
injury;  and  where  a  person  has  been  libelled,  if  a  jury 
has  awarded  him  compensatory  damages,  he  has  no 
further  just  claim.1 

Among  the  fundamental  rights  of  a  defendant  recog- 
nized by  the  criminal  law,  is  that  of  being  charged  with 
the  offence,  either  by  indictment  of  the  grand  jury  or 
by  a  sworn  complaint,  before  being  brought  into  court ; 
but  in  a  civil  suit  he  may  be  required  to  pay  punitive 
damages,  which  are  in  the  precise  nature  of  a  fine, 
without  having  been  previously  charged  upon  oath  with 
any  offence.  In  a  criminal  court  a  defendant  has  a 
constitutional  right  to  be  confronted  with  the  witnesses 
against  him  ;  but  a  claim  of  punitive  damages  may  be 
sustained  by  the  depositions  of  witnesses  whom  the 
defendant  has  never  seen.  In  a  criminal  court,  a 
defendant  shall  be  acquitted  unless  his  guilt  is  estab- 
lished beyond  a  reasonable  doubt;  but  punitive  damages 

1  The  Rochester  Post-Express,  June  20,  1888,  quoted  a  recommendation  of 
the  Chicago  Neivs  that  actual  damages  he  recoverable  by  a  plaintiff,  but  that 
punitive  damages  be  made  payable  only  to  the  State.  This,  it  is  believed,  would 
put  an  end  to  most  "  speculative"  libel  suits. 


276 


NEWSPAPER    LIBEL. 


may  be  awarded  upon  a  mere  preponderance  of  testi- 
mony. In  a  criminal  court,  finally,  a  defendant  cannot 
be  compelled  to  testify  against  himself;  but  a  claim  of 
punitive  damages  may  be  sustained  by  the  defendant's 
own  involuntary  testimony. 

Even  if  the  defendant  has  already  suffered  punishment 
in  a  criminal  court,  punitive  damages  may  be  recovered 
against  him  ;  and  it  has  been  held  that  such  damages 
are  not  in  violation  of  the  constitutional  provision  that 
no  person  shall  be  twice  put  in  jeopardy  of  punishment 
for  the  same  offence.1  This  rule  is  maintained  in  most 
of  the  States.  In  a  New  Hampshire  case,  however,  it 
was  held  that  where  a  civil  action  is  founded  upon  a 
tort  which  is  punishable  also  as  a  crime,  compensatory 
damages  cannot  be  increased  by  an  award  of  punitive 
damages.2  This  doctrine  has  also  been  sustained  in 
Massachusetts,3  Indiana,  Illinois,  Georgia,  Nebraska, 
and  the  District  of  Columbia,  but  it  is  believed  that 
everywhere  else  throughout  the  United  States  the  unjust 
principle  is  established  that  a  defendant,  after  being 
punished  in  the  criminal  courts,  may  be  compelled  to 
pay  a  verdict  for  punitive  damages  in  a  civil  action  for 
the  same  offence ;  or,  after  paying  punitive  damages  in 
a  civil  suit,  may  be  sentenced  to  fine  or  imprisonment, 
or  both,  in  a  criminal  court.  The  case  of  Fay  v.  Parker, 
above  referred  to,  like  most  of  those  sustaining  the  more 
equitable  and  just  doctrine  upon  this  subject,  was  an 
action  for  an  assault,  and  not  for  libel  In  the  course 
of  an  exhaustive  opinion  in  this  case,  Judge  Foster  said  : 
'•  The  true  rule,  simple  and  just,  is  to  keep  the  civil  and 

1  Brown  v.  Swineford,  44  Wis.  (1878),  282. 
'-'  1  ay  it  ux.  t.  Parker,  53  N.  H.  (1872),  342. 
Austin  et  ux.  ;■'.  Wilson  et  ux.,  4  Cushing  (1849),  273- 


DAMAGES.  277 

the  criminal  process  and  practice  distinct  and  separate. 
.  .  .  Punitive  damages  destroy  every  constitutional 
safeguard  within  their  reach." 

Another  defect  in  the  law  is  the  absence  of  any  well- 
defined  limit  to  the  power  of  juries  in  awarding  punitive 
damages.  The  power  of  the  courts  in  imposing  fines  for 
criminal  libel  is  limited  by  law  in  most  of  the  States ; 
but  in  a  civil  suit,  in  every  State  save  Michigan,  the 
jury  are  empowered  to  find  a  verdict  for  punitive  dam- 
ages in  any  amount  upon  which  they,  in  their  wisdom  or 
prejudice,  may  agree.  In  Michigan,  under  a  statute 
passed  at  the  session  of  the  Legislature  for  1885,  the 
plaintiff  can  recover  punitive  damages,  in  addition  to 
compensatory  damages,  in  any  sum  not  exceeding 
$5,000 ;!  whereas,  for  a  first  offence  of  criminal  libel 
in  the  same  State  the  Court  cannot  sentence  the  offender 
to  pay  a  fine  exceeding  $100,  in  addition  to  imprison- 
ment in  the  county  jail  not  exceeding  ninety  days.  In 
none  of  the  other  States  is  the  power  of  the  jury  to 
award  punitive  damages  in  civil  actions  for  libel  limited, 
save  by  the  power  of  the  Court  to  grant  a  new  trial 
on  the  ground  of  excessive  damages;  and  a.  new  trial 
always  means  a  longer  bill  of  costs.  Verdicts  are 
rarely  set  aside  on  the  ground  that  the  damages  are 
excessive,  unless  there  is  evidence  of  prejudice,  par- 
tiality, or  corruption  on  the  part  of  the  jury,  and  such 
evidence  is  very  difficult  to  obtain.  "  The  case  must 
be  very  gross,  and  the  damages  enormous,  to  justify 
ordering  a  new  trial  on  the  question  of  damages."'2 

xSec.  2.  In  any  action  or  suit  for  the  publication  of  a  libel  in  any  newspaper 
in  this  State,  the  plaintiff  shall  not  be  entitled  to  recover,  in  addition  to  actual 
damages,  any  greater  sum  than  five  thousand  dollars.  —  Act  No.  233,  Public  Acts 
of  1885. 

2Townshend  on  Slander  and  Libel,  p.  541. 

13 


278  NEWSPAPER   LIBEL. 

In  the  few  States  where  punitive  damages  are  not 
allowed  in  suits  for  libel,  the  jury  still  have  wide  discre- 
tion in  finding  compensatory  damages  for  the  plaintiff's 
injured  feelings  or  other  intangible  injuries;  and  it  is 
comparatively  immaterial  to  a  defendant  by  what  name 
damages  are  called  which  he  is  unjustly  required  to 
pay.  Any  improvement  in  the  law  will,  of  course,  be 
slow,  and,  doubtless,  the  great-grandchildren  of  the  pres- 
ent generation  of  newspaper  writers  and  publishers  will 
go  on  paying  verdicts  for  punitive  damages  in  civil  suits 
for  libel,  as  our  ancestors  in  the  profession  have  done 
ever  since  the  art  of  making  newspapers  was  invented. 
Mephistopheles,  masquerading  in  the  mantle  of  Faust, 
says  to  the  student :  "  Laws  are  inherited  like  diseases  "  ; 
and  the  law  of  libel,  as  we  have  inherited  it,  is  a  disease 
which  has  been  too  much  neglected.  A  complete  cure 
may  require  heroic  treatment,  but,  nevertheless,  a  cure 
ought  to  be  effected. 


INDEX 


Abatement  of  action  on  death  of  party,  60. 

"Abomination  in  the  sight  of  the  Lord,"  construed,  162. 

Accident,  libel  published  by,  actionable,  145. 

Accord  and  satisfaction  in  defence,  249. 

Action  for  same  libel  against  others,  no  defence,  266. 

Actual  damage,  defined,  261.     See  special  damage. 

Addison  County  Journal,  \"t.,  Knapp  v.  Fuller,  44. 

Advance,  Piedmont,  Va.,  Edwin  Harbour  shot,  62,  n. 

Advertisement,  libel  contained  in,  25,  131  ;  if  for  protection  of  one's 

own  interests,  privileged,  205. 
Advertiser,  St.  Paul  and  Minneapolis,  Zier  v.  Hoflin,  52. 
Advertiser,  Daily,  Boston,  Crane  v.  Waters,  197. 
Advertiser,  Morning,  London,  Lsill  v.  Hales,  186. 
Affidavit  to  secure  arrest,  whether  privileged,  184. 
Agent,  principal  responsible  for  acts  of,  136,  146. 
Agreement  for  indemnity  in  defence,  249. 

Alabama,  statute  regarding  contempt,  124  ;   statutes  cited,  96,  261. 
Alias,  charge  that  one  is  apt  to  assume,  libellous,  232. 
Alien  and  Sedition  Laws,  19,  74,  87,  n.,  21 T. 
"  Alleged,"  no  modification  of  libel,  24. 
Alterations  in  publishing  libel,  when  not  material,  146. 
Ambiguity,  may  be  explained,  48,  149,  153. 
American,  Baltimore,  McBee  v.  Fulton,  186,  236,   257  ;    Snyder  v. 

Fulton,  226. 
American,  N.  Y.,  Root  v.  King,  216. 
American,  Daily,  Chicago,  People  v.  Stuart,  113. 
American  Citizen,  X.  V.,  Lewis  v.  Few,  193,  224. 
American  News  Co.,  sued  by  Marie  Prescott,  139. 
Anti-Masonic  Enquirer,  Rochester,  Gould  v.  Weed,  177. 
Anti-Universalist,  Boston,  Commonwealth  v.  Batchelder,  70. 


280  INDEX. 

Apology  no  defence,  67. 

Appointment,  charge  of  selling,  libellous,  173  ;  candidate  for,  pub- 
lications regarding,  when  privileged,  219. 

Argus,  Albany,  Sumner  v.  Buel,  50,  70,  73. 

Argus  and  Democrat,  Madison,  Wis.,  Remington  v.  Brown,  175. 

Argus  and  Patriot,  Montpelier,  Gregory  v.  Atkins,  57;  Atkins  v. 
Johnson,  57,  134;   State  v.  Atkins,  94. 

Argus  and  Spectator,  Newport,  N.  H.,  Sturoc's  case,  108. 

Arizona,  penalty  in  criminal  cases,  96. 

Arkansas,  statutes  cited,  89,  96,  109,  230. 

Arkansas  Gazette,  Daily,  McDonald  v.  Woodruff,  172. 

Aroostook  Times,  Houlton,  Me.,  Powers  v.  Cary,  269. 

Arrest,  affidavits  to  secure,  whether  privileged,  184;  report  of  ar- 
rest privileged,  187;  report  must  not  assume  guilt  of  prisoner, 
188. 

Art  criticisms,  how  far  privileged,  198,  201. 

Ashley  v.  Harrison,  51,  272. 

Assignee,  when  not  liable,  143. 

Association,  libel  upon,  49. 

Attachment  of  newspaper  property,  proposed  exemption,  34. 

Attempt  to  prove  truth,  unsuccessful,  44,  253. 

Atiglaize  County  Democrat,  Wapakoneta,  O.,  Settlage  v.  Kampf, 
228. 

Aurora,  Philadelphia,  Wm.  Duane  committed  for  contempt,  127; 
Romayne  v.  Duane,  191 ;  office  attacked  for  libel  on  Washing- 
ton, 210. 

Austin  v.  Wilson,  276. 

Author.     See  writer. 

Avalanche,  Memphis,  State  v.  Galloway,  104,  125. 

Bad  character  of  defendant  no  mitigation,  266. 

Ballot-boxes,  charge  of  tampering  with,  libellous,  255. 

Bankruptcy.     See  insolvency. 

Banner,  Frankfort,  Ind.,  State  v,  Cheadle,  109,  119. 

Banner,  Nashville,  publishing   company  prosecuted,  65,  226;    suit 

of  John  Baxter,  25S. 
Banner  and  Volksfreund,  Wis.,  Wilson  v.  Noonan,  146. 
Barnum,  P.  T.,  convicted  of  libel,  88. 


INDEX.  281 

Bennett,  James  Gordon,  Sr.,  plaintiff,  159. 

Bernard,  Gov.,  libel  upon  inhabitants  of  Boston,  19. 

Betraying  government  secrets,  charge  of,  libellous,  174. 

Black,  William,  v.  John  Dick,  151. 

Black-mailing,  charge  of,  libellous,  47,  183. 

Blasphemous  libels,  63,  84-86,  87,  1S1. 

"  Bogus  proclamation,"  case  of  Joseph  Howard,  Jr.,  79. 

Bolton  v.  Deane,  39. 

Bookseller,  Eng.,  Shepheard  -'.  Whitaker,  145. 

Bow  Bells,  London,  Black  v.  Dick,  151. 

Boydell  v.  Jones,  168. 

Bradlaugh,  Charles,  prosecuted  for  blasphemy,  85. 

Bradstreefs,  suit  of  Newbold  &  Sons,  156;  Hermann  v.  the  Brad- 
street  Co.,  265. 

Breach  of  the  peace,  danger  of,  ground  of  prosecution,  62,  87. 

Breslin  v.  Peck,  274. 

Bribery,  charge  of,  libellous,  66,  140,  176,  252. 

Briggs  v.  Garrett,  194,  225. 

Brown  v.  Swineford,  276. 

Budget,  Boston,  suit  of  James  Dooling,  164. 

Bulletin,  Charleston,  State  v.  Henderson,  73. 

Bulletin,  /■.''ruing,  Philadelphia,  Struthers  v.  Peacock,  60;  Com- 
monwealth 7>.  Featherstone,  206. 

Bulletin,  Evening,  San  Francisco,  Johnson  v.  Simonton,  168;  Wil- 
son v.  Fitch,  197,  236. 

Burden  of  proof,  in  civil  actions,  59,  231;  in  criminal  cases,  90, 
230. 

Business,  unlawful,  libel  concerning,  245. 

California,  security  for  costs,  32;   penalty  in  criminal  cases,  96. 

Candidates  for  elective  offices,  publications  regarding,  213;  candi- 
dates for  appointment,  219. 

"  Cape  Cod  Folks,"  Nightingale  v.  Williams,  241. 

Carelessness  in  conduct  of  paper  may  enhance  damages,  256,  260, 
266. 

Carrier,  liable  for  delivering  libellous  paper,  53,  243. 

Cedar  Post,  Tipton,  la.,  Bent  &  Cottrell  v.  Mink,  145. 

Censorship  of  the  press,  9,  12,  26. 


282  INDEX. 

Centinela,  Paso  del  Norte,  the  Cutting  case,  136. 

Chairman  of  political  committee,  not  a  public  officer,  223. 

Changes  in  phraseology,  when  not  material,  146. 

Character  of  newspaper,  effect  on  damages,  273. 

Character  of  public  man,  publication  respecting,  209,  214. 

Chinese  American,  N.  Y.,  Chin  Fou  Tip  v.  Wong  Chin  Fou,  48. 

Chronicle,  San  Francisco,  Clifford  v.  Cochrane,  147;  Fitch  v. 
De  Young,  165. 

Chronicle,  Morning,  and  London  Advertiser,  King  v.  Home,  83. 

Chronotype,  Daily,  Boston,  Commonwealth  v.  Wright,  176. 

Circulation,  libel  published  wherever  circulated,  94  ;  of  another 
paper,  actionable  to  underrate,  165  ;  of  any  paper,  effect  on 
damages,  273. 

Citizen,  Des  Arc,  Ark.,  State  v.  Morrill,  109. 

City  Argus,  Detroit,  People  v.  Girardin,  87. 

City  governments,  libels  on,  said  to  be  indictable,  82. 

Civil  action  of  libel,  38-61  ;  a  "dangerous  experiment,"  26;  an 
action  of  tort,  41;  falsehood,  malice,  and  injury  essential,  41  ; 
who  maybe  plaintiffs,  45  ;  corporation  may  be  plaintiff  or  de- 
fendant, 51;  loss  must  be  natural  and  proximate  consequence, 
51  ;  who  maybe  defendants,  52;  indemnity  not  recoverable 
by  defendant,  56  ;  burden  of  proof,  59  ;  statutes  of  limita- 
tions, 60  ;  abatement  of  action,  60  ;  truth  in  defence,  231 ;  no 
defence  that  defendant  has  been  indicted  for  same  libel,  247, 
276. 

Class  of  persons,  libel  upon,  45,  49,  70. 

Cleveland,  President,  on  "  newspaper  lying,"  29. 

Colorado,  penalty  in  criminal  case,  96. 

Comments,  effect  on  libel,  133  ;  on  court  proceedings,  privileged, 
184. 

Commercial,  Daily,  Leavenworth,  Castle  v.  Houston,  231. 

Commercial  Advertiser,  N.  Y.,  Cooper  v.  Stone,  46,  158,  200. 

Commercial  agency,  publication  by,  when  privileged,  206. 

Commercial  Gazette,  Pittsburg,  Bruce  v.  Reed,  256. 

Common  libeller,  plaintiffs  reputation  of  being,  in  mitigation, 
261. 

Compensatory  damages,  discretion  of  jury,  278. 

Composition  of  felony,  settlement  out  of  court  is  not,  95. 


INDEX. 


283 


Compositor  liable  for  setting  a  libel,  53. 

Condensed  report  of  court  proceedings,  when  privileged  182  ;  but 
garbled  report  not  privileged,  183. 

Conduct  of  plaintiff  may  mitigate  damages,  261. 

Congregationalist,  Boston,  Shurtleff  v.  Stevens,  197. 

Congress.     See  legislature. 

Connecticut,  damages,  260  ;   statutes  cited,  89,  96,  230. 

Connecticut  Journal,  Stow  v.  Converse,  173. 

Constitution,  Atlanta,  Stewart  v.  Patent  Medicine  Co.,  150. 

Construction,  where  words  are  ambiguous,  153  ;  whether  by  court 
or  jury,  173.     See  language  which  is  libellous. 

Contempt  of  court  by  publication,  99-129;  of  legislature,  99;  of 
inferior  courts,  101,  114;  publication  of  court  report  may  be 
prohibited,  102;  power  of  Federal  courts,  103;  of  State 
courts,  106;  power  to  punish  for  publications  not  necessary  for 
protection  of  court,  113;  libels  on  grand  jury,  115;  how  far 
intent  is  material,  117;  libel  must  tend  to  obstruct  the  court, 
118;  abuses  by  the  press,  121 ;  reporter's  refusal  to  disclose 
sources  of  information,  123;  review  of  judgment  of  conviction, 
125;  power  to  punish  restricted,  126;  no  right  of  jury  trial, 
127;    or  bail,  128;   danger  of  judicial  abuses,  128. 

"  Contemptuous  "  damages,  268. 

Contract  price  for  printing  libel  not  recoverable,  56;  contracts  of 
book  publishers,  59. 

Conversation  of  defendant,  may  show  malice,  44. 

Convict,  released,  charge  of  being,  libellous,  268. 

Cooper,  J.  Fenimore,  plaintiff,  46,  158,  173,  200. 

Copied  from  another  paper  —  the  fact  in  mitigation,  261. 

Coroner,  commitment  for  contempt  by,  1 14. 

Corporation,  may  be  plaintiff  or  defendant,  51;  libel  affecting 
credit  of,  64;  may  be  indicted,  65;  liable  for  libel  published 
by  agent,  132;   punitive  damages  recoverable  against,  142. 

Correction,  conditional  offer  to  make,  265. 

Correspondent,  no  defence  that  libel  was  sent  by,  237. 

"  Corrupt  legislation,  prominent  in,"  libellous,  215. 

Corrupting  voters,  charge  of,  libellous,  1 74. 

Cost  of  defending  libel  suits,  31. 

Costs,  security  for,  32;  juries  should  not  consider,  268. 


284 


INDEX. 


Counsel  for  defendant,  defamatory  language  used  by  at  trial,  in  en- 
hancement of  damages,  254. 

Courier,  Buffalo,  Van  Aernam  v.  McCune,  142. 

Courier,  Houma,  La.,  Wallis  v.  Bazet,  193. 

Courier  and  Enquirer,  N.  Y.,  Stanley  v.  Webb,  184. 

Court  and  jury,  respective  provinces,  18,  21,  22,  92,  173,  229,  255, 
265. 

Court  reports,  publication  may  be  prohibited,  102;  but  not  in  Fed- 
eral courts,  103;  reports  privileged,  1S0;  exceptions,  181; 
"true  report"  defined,  182;  various  limitations,  182;  com- 
ments on  judicial  proceedings,  184;  ex  parte  hearings,  184; 
arrests,  187;  all  courts  on  same  footing,  1S8;  proceedings  be- 
fore grand  jury,  etc.,  189. 

Cowardice,  charge  of,  may  be  libellous,  71. 

"Crank,"  not  libellous  per  se,  161. 

Crediting  wrongfully  treasonable  article,  libellous,  170. 

Crescent,  New  Orleans,  Tresca  v,  Maddox,  iSS,  249. 

Crime,  libel  need  not  charge,  149;  charge  of  crime  —  nature  of 
evidence  in  defence,  236;  evidence  in  mitigation,  253. 

Criminal  libel,  62-9S  ;  what  publications  are  criminal,  62;  corpo- 
ration maybe  prosecuted,  65;  malice,  65;  publisher's  negli- 
gence, 66;  libels  on  the  dead,  69;  on  classes  of  persons,  70  ; 
need  not  convey  charge  of  ciime,  1^;  seditious  libels,  74; 
blasphemous  libels,  84 ;  obscene  libels,  86  ;  truth  in  defence, 
87,  230  ;  general  verdict  may  be  returned,  92  ;  evidence  of  pub- 
lication, 93  ;  precision  in  indictments,  94;  penalty  in  case  of 
conviction,  96 ;  editor  not  liable  if  published  against  his  will, 
135  ;  no  defence  that  prisoner  has  paid  damages  in  civil  suit, 
247,276;  editor  or  proprietor  may  show  in  defence  that  he 
could  not  prevent  the  publication,  249. 

Criticism  of  works  of  art,  etc.,  when  privileged,  198. 

Croswell,  Harry,  indicted  for  libelling  Jefferson,  20,  38,  118. 

Current,  Big  Rapids,  Mich.,  Bronson  v.  Bruce,  218. 

Cutting  case,  136. 

Dakota,  definition  of  libel,  39;  statutes  cited,  60,  96. 
Daly,  Augustin,  v.  Byrne,  233. 

Damages,  250-278;  injury  a  presumption  of  law,  250;  limit  of 
damages,  250,  277  ;    plaintiff's  bad  reputation  in  mitigation, 


INDEX. 


285 


251  ;  his  social  standing  for  enhancement,  252;  partial  or  at- 
tempted justification,  253  ;  malice,  to  sustain  punitive  damages, 
255 ;  mitigation,  261 ;  retraction,  264  ;  new  trials,  when  granted, 
266  ;  "  contemptuous  "  damages,  268  ;  damages,  whether  excess- 
ive, 269:  when  special  damage  must  be  proved,  156,  272; 
effect  of  circulation,  273  ;  damages  assessed  once  for  all,  274  ; 
punitive  damages,  injustice  of,  274 ;  damages  held  excessive, 
55,  223,  256,  270-272  ;  held  not  excessive,  47,  52,  269.  See 
punitive  damages. 

Dauphin,  Maximilian  A.,  v.  Philadelphia   Times,  246. 

Day  Book,  N.  Y.,  Weed  v.  Foster,  173. 

Dead,  lib  Is  on  the,  64,  69. 

Defamatory,  defence  to  show  that  words  are  not,  229 ;  defamatory 
words  deemed  false  till  truth  is  shown,  231. 

Defences,  229-249;  that  words  are  not  defamatory,  229  ;  privilege, 
229  ;  truth,  230  ;  proof  must  be  as  "  broad  as  the  charge,"  232  ; 
where  the  libel  charges  a  crime,  236;  common  rumor,  237 ; 
mutual  libels,  23S  ;  plaintiff's  bad  reputation  in  mitigation, 
239;  publisher's  ignorance  of  defamatory  character  of  the 
libel,  241;  various  defences,  243;  statute  of  limitations,  60, 
244 ;  plaintiff's  occupation  unlawful,  245  ;  previous  recovery, 
246 ;  accord  and  satisfaction,  249 ;  ignorance  of  the  fact  of 
publication,  249. 

Defendant,  who  maybe,  52,  130;  his  knowledge  of  the  injurious 
nature  of  the  words,  when  material,  157. 

Dejiance,  Atlanta,  case  of  A.  W.  Burnett,  125;  State  v.  Pledger, 
125. 

Definitions  of  libel,  38,  63. 

Democrat,  Davenport,  la.,  Bent  &  Cottrell  v.  Mink,  145. 

Democrat  and  Chronicle,  Rochester,  case  of  John  Dennis,  Jr.,  123  ; 
suit  of  Hiram  J.  Purdy,  163. 

Democratic  Press,  Pa.,  McCorkle  v.  Binns,  175. 

Democratic  Standard,  Concord,  Palmer  v.  Concord,  71. 

Demokrat,  N.  Y.,  Wachter  v.  Quenzer,  153. 

Disbarment,  case  of  Steinman  and  Hensel,  106  ;  petition  for,  report 
not  privileged,  190. 

Dispatch,  Richmond,  Lynch  v.  Chaffin,  205. 

Dispatch,  St.  Louis,  suit  of  H.  B.  Johnson,  24. 

Dispatch,  Sunday,  N.  Y.,  Bennett  v.  Williamson,  26,  159. 
13* 


286  INDEX. 

Dispatch,  Weekly,  Eng.,   Duke  of  Brunswick  v.  Harmer,  60,  138, 

244. 
District  of  Columbia,  statutes  cited,  62,  89. 
Divorce,  bill  for,  report  not  privileged,  191. 
Dougherty,  Daniel,  on  "trial  by  newspaper,"  122. 
Dramatic  criticisms,  when  privileged,  198. 
Dramatic  News,  N.  Y.,  Daly  v.  Byrne,  234. 
Duke  of  Brunswick  v.  Harmer,  6o,  138,  244. 

Eagle,  Macomb,  111.,  Snyder  v,  Strader,  146. 

Editor,  liability  of,  53 ;  no  defence  that  he  knew  nothing  of  the 
libel,  249. 

Editorial  influence,  charge  of  selling,  libellous,  165. 

Elopement,  charge  of,  may  be  libellous,  68. 

Employee,  sale  of  libel  by,  renders  employer  liable,  53,  93. 

England,  prevalence  of  libel  actions,  30;  injunctions  to  restrain 
libels,  122,  n. ;  "  Newspaper  Libel  and  Registration  Act,"  194. 

Enhancement  of  d  mages.     See  punitive  damages. 

Enquirer,  Cincinnati,  Allen  O.Myers'  case,  119;  the  Gibson  case, 
260,  269. 

Enterprise,  Sweet  Water,  Tenn.,  suit  of  John  Baxter,  258. 

Exaggerated  language,  may  show  malice,  44. 

Examiner,  London,  Leigh  Hunt's  case,  84. 

Examiner,  San  Francisco,  case  of  Felix  J.  Zeehandelaar,  102. 

Excessive  damages,  in  general,  269-272  ;  new  trial  on  ground  of, 
266,  277;  damages  held  excessive,  55,  223,  256;  held  not  ex- 
cessive, 47,  52. 

Excitement  of  political  campaign,  no  mitigation,  218. 

Execution  of  criminal,  report  not  privileged,  190. 

Exemplary  damages.     See  punitive  damages. 

Exemption  from  attachment  of  certain  newspaper  property,  pro- 
posed, 34. 

Exhibition  of  a  libel  involves  liability,  54 ;  criticism  of  things 
offered  for  exhibition,  privileged,  198,  202. 

Ex  parte  judicial  proceedings,  whether  report  privileged,  184,  189. 
Exponent,  Culpepper,  Va  ,  George  Williams  killed,  62,  n. 
Express,  Buffalo,  Mr.  Matthews'  libel  experiences,  32,  n. 
Express,  San  Antonio,  H.  S.  Canfield  committed  for  contempt,  99  ; 
the  Copeland  case,  213,  217. 


INDEX. 


287 


Express,  Evening,  N.  Y.,  Edsall  v.  Brooks,  44,  183,  265  ;  Lyons  v. 

Townsend,  204. 
Express,  Saturday  Evening,  Boston,    Commonwealth  v.  Morgan, 

67,  134. 

"  False  rumor  law,"  N.  Y.,  64. 

False  swearing,  charge  of,  libellous,  49. 

Falsehood,  charge  of,  libellous,  46. 

Falsity,  essential  in  civil  action,  41  ;  whether  evidence  of  malice, 

44,  255;  defamatory  words  deemed  false  until  truth  is  shown, 

231. 
Fay  v.  Parker,  276. 

Federal  courts,  power  to  punish  contempts  restricted,  103. 
Feelings,  injury  to,  not  sufficient  to  sustain  action,  149. 
Field,  David  Dudley,  need  of  restrictions  on  the  press,  28,  30. 
Fireman's  Journal,  N.  Y.,  suits  of  Dwyer  and  Ryer,  47  ;  suit  of 

James  Aird,  232. 
First  American  newspaper,  9. 
First  libel  case  tried  in  America,  15. 
Fisk,  James,  Jr.,  plaintiff,  250. 
Florida,  statutes  cited,  60,  96. 

Florida  Times-Union,  Jacksonville,  Townsend  v.  Jones,  217. 
Forgery,  charge  of,  libellous,  192,  218,  233. 
Fors  Clavigera,  Whistler  v.  Ruskin,  201. 
Fox's  Libel  Act,  18. 

Franklin,  James,  imprisoned  for  libel,  13. 
Free  Press,  Detroit,  suit  of  Donald  McArthur,  45,  51,  240  ;  suit  of 

John  Finnegan,  155  ;  suit  of  James  Rowe,  191. 
Free  Press,  Mankato,  Minn.,  Marks  v.  Baker,  213. 
Freedom  of  the  press,  13,  26,  28  ;  defined,  1,  27. 
Freethinker,  London,  Queen  v.  Bradlaugh,  and  Queen  v.  Ramsey, 

85. 
Freiheits  Freund,  Pittsburg,  Hope  v.  Neeb,  255. 
Frivolous  suits  for  libel,  31,  34. 
Fry  v.  Bennett,  199,  273. 
"  Fudge  !  "  its  effect  on  a  libel,  133. 

Garrison,  William  Lloyd,  prosecuted  and  sued,  248. 
Gate  City,  Daily,  Keokuk,  State  v.  Anderson,  118. 


288  INDEX. 

Gauvreau  v.  Superior  Publishing  Co.,  167. 

Gazette,  Boston,  charged  with  libelling  governor,  18;  Child  v. 
Homer,  239. 

Gazette,  Cincinnati,  suit  of  Charles  L.  Timberlake,  184. 

Gazette,  Colchester,  Eng.,  Cook  v.  Ward,  171. 

Gazette,  Janesville,  Wis.,  suit  of  W.  H.  Whitney,  251. 

Gazette,  Kalamazoo,  Sullings  v.  Shakespeare,  170. 

Gazette,  Providence,  Commonwealth  v.  Blanding,  94. 

Gazette,  Troy,  Andres  v.  Wells,  143. 

Gazette,  Ulster,  People  v.  Freer,  118. 

Gazette,  Va.,  William  Parks  arraigned  before  Assembly,  18,  n. 

Gazette,  Daily,  Taunton,  Hatch  v.  Lane,  206. 

Gazette,  Saturday  Evening,  Boston,  proceedings  by  Prince  &  Tea- 
body,  34. 

General  Advertiser,  Philadelphia,  Hollingsworth  v.  Duane,  127. 

Genius  of  Universal  Emancipation,  Baltimore,  case  of  William 
Lloyd  Garrison,  248. 

Georgia,  statute  regarding  contempt,  125;  statutes  cited,  96,  230. 

Globe,  Boston,  case  of  Frost  and  Saunders,  124. 

Grand  Army  Journal,  Washington,  State  v.  Woody,  54. 

Grand  jury,  take  cognizance  of  contempt,  115;  libels  on,  118; 
report  of  proceedings  before,  when  not  privileged,  189. 

Grand  Jury  v.  Public  Press,  115. 

"Greater  the  truth,  the  greater  the  libel,"  S7,  230. 

Greeley,  Horace,  answer  to  interrogatories  in  contempt,  116;  his 
own  attorney,  15S,  n.;  defendant,  45,  173,  215,  250. 

Hamilton,  Alexander,  counsel  for  Croswell,  21  ;  definition  of  libel, 

Hamilton,  Andrew,  counsel  for  Zenger,  16. 

Handwriting,  comparison  of,  to  prove  authorship,  144. 

Hangman,  books  and  papers  burned  by,  9,  16. 

Hastings  v.  Stetson,  266. 

Hatchard  v.  Mege,  60. 

Hawkeye,  Daily,  Burlington,  State  v.  Dunham,  in. 

Heading,  of  article  may  be  libellous,  132,  170;  of  court  report  not 

privileged,  182. 
Herald,  Boston,  on   Cooper's  libel  suits,  158,  n. ;  Cowley  v.  Pul- 

sifer,  191 ;  Gott  v.  Pulsifer,  201,  272. 


INDEX. 


289 


Herald,  Chicago,  on  the  suppression  of  the  Times,  82. 

Herald,  Fall  River,  suit  of  Hurley  and  Gillan,  178. 

Herald,  N.  Y.,  Fleischmann  v.  Bennett,  46;  Robertson  v.  Bennett, 
47  ;  Commonwealth  v.  Chambers,  73  ;  the  "  bogus  proclama- 
tion," 8r;  Wesley  v.  Bennett,  153;  More  v.  Bennett,  157; 
Sanford  v.  Bennett,  190,  237  ;  Fry  v.  Bennett,  199,  273  ;  Hunt 
v.  Bennett,  219,  232;  Malloy  v.  Bennett,  270. 

Herald,  Vicksburg,  Kline  v.  Rodgers,  167. 

Herald,  Daily,  Middletovvn,  Conn.,  Frank  H.  Alford  in  contempt, 
114 

Herald,  Sunday,  El  Paso,  the  Cutting  case,  136. 

Herald  and  Gazette,  Morning,  Utica,  Kinney  v.  Roberts,  261. 

Herald  and  Torchlight,  Hagerstown,  Md.,  Farrow  v.  Negley,  223. 

Herald  of  Freedom,  Danbury,  Conn.,  P.  T.  Barnum's  case,  88. 

"  Honest  lawyer,"  may  be  libellous,  169. 

Home  Tooke,  convicted  of  seditious  libel,  S3. 

Howard,  Joseph,  Jr.,  arrested  for  forging  proclamation,  81. 

Hudson,  Frederick,  on  personalities  in  newspapers,  30. 

Idaho,  statutes  cited,  60,  96. 

Ignorance,  of  the  law  no  excuse,  23;  of  the  libel  no  defence,  53, 
134  ;  in  criminal  case,  66,  93  ;  in  contempt  case,  10S  ;  the  rule 
defended,  141  ;  when  ignorance  may  be  pleaded,  241. 

Illegibility  of  plaintiff's  handwriting,  when  defence,  170. 

Illegitimacy,  charge  of,  libellous,  151. 

Illinois,  statutes  cited,  44,  96. 

Immorality.     See  unchastity. 

Impeachment  of  Judge  Peck,  104. 

"  Imprimatur,"  12,  14. 

Inaccuracies  in  libel,  when  immaterial,  235. 

Inadequate  damages,  whether  ground  for  new  trial,  267. 

Indemnity  not  recoverable  by  one  who  has  been  sued,  56,  58,  134. 

Indepejidoit,  Helena,  Territory  v.  Murray.  106. 

Indiana,  no  new  trial  on  ground  of  smallness  of  damages,  268 ; 
statutes  cited,  60,  89,  96,  230. 

Indictment,  precision  required  in,  94. 

Individuals,  defamation  must  be  against,  45,  149. 

"  Infamous  "  crime,  libel  is  not,  62,  n. 

Inferior  courts,  power  to  punish  for  contempt,  101,  114. 


290  INDEX. 

Ingratitude,  charge  of,  may  be  libellous,  151. 

"  Inhuman  step-mother,"  etc.,  not  YibeUous per  se,  162. 

Injunction,  not  granted  to  restrain  publication  of  libel,  27,  41,  n. ; 
granted  in  England,  122,  n. 

Injury,  a  presumption  of  law,  41,  250,  272. 

Inquirer,  Columbus,  Souder  v.  Howe  Machine  Co.,  132. 

Inquirer,  St.  Louis,  Luke  Edward  Lawless  in  contempt,  104. 

Insanity,  charge  of,  libellous,  147,  169  ;  in  defence,  243. 

Insolvency,  charge  of,  libellous,  55,  143,  145,  172,  265. 

Intelligencer,  Wheeling,  State  v.  Frew  and  Hart,  109. 

Intelligencer,  Daily,  Lancaster,  ex  parte  Steinman  and  Hensel,  106. 

Intent,  how  far  material  in  contempt  case,  117;  of  writer,  when 
immaterial,  155  ;  of  defendant,  immaterial  if  words/*/'  se  libel- 
lous, 240. 

Inter-Ocean,  Chicago,  Bent  &  Cottrell  v.  Mink,  145  ;  suit  of  Oba- 
diah  Huse,  177. 

Interpretation.     See  construction,  and  language  which  is  libellous. 

Interrogative  form,  libel  may  be  in,  170. 

Interview,  libellous,  person  interviewed  liable,  55,  94,  146. 

Intoxication  no  defence,  243. 

Investigator,  Boston,  Commonwealth  v.  Kneeland,  84,  136. 

Iowa,  statutes  cited,  44,  60,  96. 

Ireland's  Liberator,  N.  Y.,  People  v.  Rellihan,  91. 

Irish  Canadian,  Toronto,  suit  of  Massie,  272. 

Irishman,  Queen  v.  Pigott,  83. 

Ironical  language,  may  be  libellous,  16S. 

"  It  is  said,"  no  modification  of  libel,  24. 

Jest,  publication  made  in,  no  defence,  243. 
John  Donkey,  Texas,  State  v.  Hanson,  87. 
Joint  publishers  of  libel,  recovery  from  one  liquidates  claim  against 

the  other,  247,  274. 
Joint  stock  association,  liability  of,  142. 
Journal,  Boston,  on  malicious  attachment  of  newspaper  property, 

36. 
Journal,  Evening,  Chicago,   People  v.  Wilson,  107,  127  ;  Bent  & 

Cottrell  v.  Mink,  145. 
Journal,  Evening,  Detroit,  suit  of  Michael  Bourreseau,  196. 
Journal,  Evening,  Jersey  City,  suit  of  Allan  L.  McDermott,  185  ; 

Woods  v.  Pangburn,  247. 


INDEX.  291 

Journal,  Weekly,  N.  Y  ,  case  of  John  Peter  Zenger,  15. 

Journal  of  Commerce,  N.  Y.,  suppressed  for  publishing  "bogus 
proclamation,"  79. 

Jury,  detetmine  the  law  and  the  fact,  22,  92  ;  libel  upon  member 
of,  50,  11S;  in  contempt  case  no  right  of  trial  by,  127;  con- 
strue language  when  ambiguous,  153,  154,  173;  discretion  in 
matter  of  damages,  250,  255,  277.     See  court  and  jury. 

Kansas,  jury  determine  law,  22,  n.  ;   penalty  for  criminal  libel,  96. 

Kennebec  Journal,  Me.,  Usher  v.  Severance,  172,  188. 

Kentucky,  jury  trial  in  contempt  cases,  128  ;  no  new  trial  on 
ground  smallness  of  damages,  268. 

Kidd  v.  Horry,  41. 

King  v.  Carlile,  181. 

Knowledge,  of  the  defamatory  character  of  the  words,  when  mate- 
rial, 157  ;  of  the  falsity  of  the  publication  prool  of  malice,  255. 

Labouchere,  Henry,  prosecuted,  69. 

Lacrosse  match,  criticism  of,  privileged,  198. 

Language  which  is  libellous,  148-179;  libellous  words  distin- 
guished from  slanderous,  148;  need  not  charge  crime,  149; 
words  exposing  to  contempt  or  ridicule,  151  ;  ambiguous 
words,  152;  the  question  of  intent,  155;  words  libellous  per 
se  —  special  damage,  156;  slander  of  title,  164;  words  affect- 
ing one  in  his  profession  or  trade,  166 ;  ironical  words,  etc., 
168;  province  of  court  and  jury  in  interpretation,  172. 

Larceny,  charge  of,  libellous,  47,  155. 

Later  publication,  whether  evidence  to  show  malice,  257. 

Laws  of  the  Twelve  Tables,  libel  a  capital  offence,  10,  n. 

Leader,  Sunday,  Pittsburg,  O'Niell  v.  Pittock,  203. 

Lecturer,  what  language  concerning  is  privileged,  195. 

"  Legal  "  malice,  65. 

Legislature,  libels  on,  not  indictable  unless  seditious,  82;  may 
punish  for  contemptuous  publications,  99 ;  cannot  restrict 
power  of  courts  to  punish  for  contempts,  109;  reports  priv- 
ileged, 23,  191 ;  unless  sessions  held  with  closed  doors,  192. 

Leigh  Hunt  convicted  of  libel,  S4. 

Letter  carrier,  not  liable  for  delivering  libellous  paper,  53. 

Lewis,  Morgan,  v.  Few,  193,  224. 


292  INDEX. 

Liability,  civil  and  criminal,  for  same  libel,  97. 
Liar,  charge  of  being,  libellous,  46. 

Libel,  defined,  38;  distinguished  from  slander,  39,  148;  a  tort  and 
a  crime,  41  ;  must  be  against  individuals,  45;  plaintiff  need 
not  be  named,  46;  against  a  class  of  persons,  49;  against  a 
corporation,  51  ;  loss  a  natural  and  proximate  consequence, 
51;  who  liable,  52;  statute  of  limitations,  60;  must  be  read 
by  some  one,  54,  139;  when  copied  from  another  newspaper, 
T32>  '47  I  published  wherever  circulated,  136;  libels  on  others 
no  evidence  of  malice,  260  ;  no  mitigation  that  defendant  is 
not  the  author,  266. 

Libel  and  slander,  early  Massachusetts  statute,  10. 

Libeller,  common,  plaintiff's   reputation  of   being,  in    mitigation, 
261. 

"  Libellous  journalist,"  charge  of  being,  actionable,  234. 

Libellous  per  se,  what  language  is,  156,  158;  intent  of  defendant 
immaterial,  240. 

Liberty  of  the  press,  13,  26,  28;  defined,  1,  27. 

Lick,  James,  v.  Owen,  42. 

Limit  of  punitive  damages,  general  lack  of,  277. 

Limitations,  statutes  of,  60,  244. 

Literary  criticisms,  when  privileged,  198,  200. 

Local,  Oconomowoc,  Wis.,  Peterson?'.  Solverson,  173. 

Loss,  must  be  natural  and  proximate  consequence,  51 ;  if  small,  in 
mitigation,  261. 

Louisiana,  penalty  for  criminal  libel,  97. 

Maclean,  Donald,  v.  Scripps,  196,  270. 

Mail,  Toronto,  suit  of  Rudolphe  Lafiamme,  255. 

Mail,  Evening,  Allegheny,  State  v.  Kountz,  13S. 

Mail,  Evening,  N.  Y.,  sued  by  Samuel  Samuels,  149. 

Maine,  publisher's  liability,  136,  n. ;  publications  regarding  public 
officers,  etc.,  20S,  n. ;  statutes  cited,  60,  96. 

Malice,  an  inequitable  assumption,  33  ;  malice  on  the  part  of  the 
plaintiff,  34  ;  malice  essential  in  libel  proceedings,  41  ;  defined, 
41;  "legal"  malice,  65;  when  actual  malice  is  material,  42, 
44,  180  ;  how  shown  to  exist,  43,  203,  255-260  ;  effect  on 
damages,  45,  255  ;  whether  employer  is  liable  for  actual  malice 
of  employee,  45,   256;  malice  in  case  of  criminal  libel,  65; 


INDEX. 


293 


liability  for  express  malice  of  partner,  141 ;  malice  in  the  case 
of  a  corporation,  142  ;  in  the  case  of  privileged  publications, 
180,  203  ;  not  inferred  from  unsustained  allegation  of  truth, 
232;  where  words  are  per  se  libellous,  240;  actual  malice 
of  one  defendant  not  increase  damages  against  another,  256. 

"  Malpractice,"  held  not  libellous,  167. 

Manuscript,  when  it  must  be  accounted  for,  145. 

Marten  v.  Van  Schaick,  143. 

Maryland,  statutes  cited,  60,  89,  230. 

Mascot,  New  Orleans,  State  v.  Monroe,  27  ;  Van  Benthuysen  v. 
Staub,  139. 

Massachusetts,  penalty  for  criminal  libel,  97 ;  truth  in  defence  in 
criminal  cases,  88,  90,  230;  in  civil  cases,  231  ;  statutes  cited, 
44,  60. 

Medical  Times,  Eng.,  Wakley  v.  Cooke,  234. 

Meetings,  public,  whether  reports  privileged,  193,  224. 

Mercantile  agency,  publication  by,  when  privileged,  206. 

Mercantile  Agency  Notification  Sheet,  Patterson  v.  King,  206. 

Mercury,  Charleston,  McBride  v.  Ellis,  144,  172. 

Mercury,  Daily,  San  Jose,  I-ick  v.  Owen,  42. 

Mercury,  Sunday,  N.  Y.,  Moffatt  v.  Cauldwell,  149;  Sanderson  v. 
Cauldwell,  176;  McCabe  v.  Cauldwell,  189. 

Messenger,  Somerset,  N.  J.,  Schenck  7'.  Schenck,  145,  146. 

Michigan,  narrow  construction  of  law  of  privilege,  196;  "actual 
damages  "  defined,  261  ;  punitive  damages  limited,  277  ;  statutes 
cited,  44,  60,  96,  270. 

Michigan  Press  Association,  proposed  change  in  libel  law,  260,  n. 

Mining  corporation,  words  concerning  trustee  not  privileged,  197. 

Minnesota,  libels  on  political  candidates,  227  ;  "actual  damages" 
defined,  261  ;  statute  of  limitations,  60. 

Minority,  no  defence,  243. 

Mississippi,  statutes  cited,  89,  230. 

Missouri,  statutes  cited,  60,  89,  96,  230. 

Missouri  Republican,  St.  Louis,  Boogher  v.  Knapp,  235. 

Mistake,  publication  made  by,  mitigation,  261. 

Mitigation  of  damages,  in  general,  261,  266;  evidence  of  the  truth 
in  criminal  case,  91 ;  mitigation  in  cases  of  contempt,  10S, 
1  iS  ;  belief  in  the  truth  of  the  libel,  91,  21S,  237  ;  partial  justi- 
fication, 232,  253  ;  libellous  publications  by  the  plaintiff,  239  ; 


294  INDEX. 

his  bad  reputation,  239,  251  ;    facts  in  mitigation  must  have 

been  known  to  defendant  at  time  of  publication,  262. 
Mob,  newspaper  office  atacked  by,  72,  21 1. 
Montana,  penalty  for  criminal  libel,  96. 
Motive,  truth  defence  in  criminal  libel  where  "good  motives  and 

justifiable  ends,"  21,  88,  230;  motive  immaterial  if  words  per 

se  libellous,  240. 
Municipal  corporations,  libels  on,  said  to  be  indictable,  82. 
Musical  criticisms,  when  privileged,  198. 
Mutual   libels,   mitigation    of    damages,    262  ;    instances  of,    169, 

238,  262. 

Name  of  person  libelled,  need  not  be  published,  46,  68,  154  ;  if 
published  cannot  be  shown  that  some  other  person  was  in- 
tended, 155. 

Nation,  N.  Y.,  Williams  v.  Godkin,  17S. 

National  Druggist,  St.  Louis,  suit  of  John  \V.  Lanius,  266. 

National  Editorial  Association,  proposed  law  regarding  malice,  33. 

National  law  of  libel  advocated,  30. 

Natural  and  proximate  consequence,  loss  must  be,  51,  156. 

Nebraska,  statutes  cited,  96,  273. 

Nebraska  Press,  Daily,  Nebraska  City,  Geisler  v.  Brown,  162. 

Negligence,  of  editor  or  publisher  in  criminal  case,  66 ;  may  en- 
hance damages,  256,  260,  266. 

Nevada,  statutes  cited,  60,  96. 

New  England  Cataract,  Pittsfield,  Commonwealth  v.  Bonner,  90. 

New  England  Courant,  Boston,  James  Franklin  imprisoned  for 
libel,  13. 

New  Hampshire,  statutes  cited,  60,  72. 

New  Jersey,  power  of  appellate  courts  in  matters  of  contempt, 
126  ;  statutes  cited,  60,  89,  230. 

New  Jersey  Patriot,  Bridgeton,  John  Cheeseman's  case,  129. 

New  trial,  on  ground  of  excessive  damages,  266 ;  on  ground  of 
inadequate  damages,  267  ;  granted  unless  plaintiff  accept  re- 
duced judgment,  271,  272. 

New  York,  constitutional  provision,  22,  n. ;  definition  of  libel, 
39 ;  who  chargeable  with  publication,  67  ;  truth  in  defence  in 
criminal  case,  8S ;  jury  may  not  find  special  verdict,  92;  pen- 
alty for  criminal  libel,  96 ;  court  reports  may  not  be  prohibited, 


INDEX. 


295 


102;  privileged  publications,  1S0,  n.,  181;  statutes  cited,  60, 
62,  n. 

News,  Chicago,  proposed  law  regarding  punitive  damages,  275,  n. 

News,  Denver,  Martin  v.  Byers,  50,  119. 

News,  Kernersville,  N.  C,  State  v.  Lyon,  239  ;  Davis  v.  Lyon,  240. 

News,  Philadelphia,  Dolby's  case,  151. 

A'e7us,  Daily,  Galveston,  Wren  v.  Belo,  192. 

Arews,  Daily,  London,  Usill  v.  Hales,  186. 

News,  Evening,  Detroit,  Reilly  v.  Scripps,  45,  240;  Wheaton  v. 
Beecher,  55,  218  ;  Maclean  v.  Scripps,  196,  270 ;  Foster  v. 
Scripps,  220  ;  suit  of  Hugh  S.  Peoples,  236  ;  suit  of  James  E. 
Tryon,  264. 

ATews,  Evening,  Salem,  Commonwealth  v.  Damon,  65,  134. 

News,  Morning,  Toronto,  Queen  v.  Sheppard,  70. 

ATews,  Weekly,  Ireland,  Queen  v.  Sullivan,  39,  78. 

ATews-Herald,  Jacksonville,  suit  of  E.  H.  Lewis,  171. 

News  agent,  liability  of,  53,  93, 139. 

Newsboy,  liable  for  selling  paper  containing  libel,  140. 

Newspaper,  criticisms  of  court  by,  121  ;  libel  copied  from  one 
newspaper  into  another,  132,  147  ;  newspaper  writers  and  pub- 
lishers enjoy  no  special  immunities,  207. 

"  Newspaper  Libel  and  Registration  Act,  i8Sr,"  194. 

"  Newspaper  war."     See  mutual  libels. 

Nominal  damages,  268;  in  case  of  mutual  libels,  263;  where  facts 
warrant  punitive,  verdict  inconsistent,  267  ;  instances  of  nomi- 
nal damages,  51,  133,  166,  n.,  172,  191,  198,  201,  268,  n. 

North  Carolina,  statutes  cited,  89,  230. 

Northern  Budget,  Troy,  Dole  v.  Lyon,  131. 

ATym  Crinkle,  N.  Y.,  Prescott  v.  Tousey,  139,  252,  253. 

Obituary  of  living  person,  libellous,  144. 
Obscene  libels,  86,  87. 
Observer,  Eng.,  Lewis  v.  Clement,  171. 

Occupation,  libel  concerning  one  in  respect  to  unlawful,  168,  245. 
Officers,  of  regiment,  libel  upon,  50,  70;  of  government,  publica- 
tions regarding,  when  privileged,  221. 
Ohio,  statutes  cited,  60,  96,  121. 
Ontario,  statutes  cited,  t,3,  l94,  2-7- 
Ontario  Messenger,  Canandaigua,  N.  Y.,  Southwick  v.  Stevens,  169. 


296  INDEX. 

Opinion,  Rockland,  Me.,  Tillson  v.  Robbins,  174. 

Oracle,  Eng.,  Heriot?'.  Stuart,  165. 

Oral  language,  one  who  uses  may  be  liable,  55,  146. 

Oregon,  statutes  cited,  60,  96. 

Osage  County  Democrat,  Burlingame,  Kan.,  State  v.  Mayberry,  178. 

Ostvego  County  W/iig,N.  Y.,  Hotchkiss  v.  Oliphant,  170. 

Outlawed,  time  when  action  will  be,  60,  244. 

Owl,  N.  Y.,  People  v.  Parr,  62. 

Packet,  London,  or  New  Lloyd's  Evening  Post,  King  v.  Home,  83. 

Parliament,  reports  privileged,  22. 

Partial  justification  in  mitigation,  253. 

Partners,  all  liable  for  the  acts  of  one,  141  ;  recovery  from  one 

liquidates  claim  against  another,  247,  274. 
Party  to  litigation,  report  by,  whether  privileged,  184. 
Pecuniary  loss,  not  generally  necessary  to  show,  272. 
Penalty  in  case  of  conviction,  96. 
Pennsylvania,  statute  regarding  contempt,  115,   126;  publications 

regarding  public  officers,  etc.,  208,  n. ;    penalty  for  criminal 

libel,  96. 
People  v.  McDowell,  93. 
Perry  v.  Porter,  231. 

Per  se  libellous,  what  language  is,  156,  158. 
Personalities  in  the  press,  28. 
Picture  may  be  libellous,  39,  78. 
Pilot,  Boston,  Queen  v.  Pigott,  S3. 
Pioneer,  Streator,  111.,  People  v.  Clay,  55,  94,  146. 
Pioneer  Press,  St.  Paul,  suit  of  Edwin  dibble,  43,  161,257;  suit 

of  Daniel  L.  Pratt,  171,  271  ;  suit  of  George  Hewitt,  261. 
Plaintiff,  must  show  that  the  libel  refers  to  him,  46,  149  ;  need  not 

be  named,  46,  68  ;  libels  published  by,  in  defence,  238  ;  conduct 

of,  may  mitigate  damages,  261. 
Pleadings  of  defendant,  if  defamatory,  may  enhance  damages,  255. 
Political  Beacon,  Ind.,  Hall  v.  Dunn,  68,  135. 
Political  campaign,  excitement  of,  no  mitigat'on,  218. 
Political  libels,  20S-228.     See  privileged  publications. 
Porcupine's    Gazette,    Philadelphia,   William    Cobbett's   case,    75 ; 

Respublica  v.  Davis,  138. 
Portfolio,  Philadelphia,  Respublica  v.  Dennie,  77. 


INDEX.  297 

Post,  Athens,  Tenn.,  suit  of  John  Baxter,  25S. 

Post,  Detroit,  suit  of  Donald  McArthur,  45,  51,  240. 

Post,  Montreal,  suit  of  Amateur  Athletic  Association,  198. 

Post,  Pittsburg,  Moore  v.  Barr,  222. 

Post,  Tri-Weekly,  Springfield,  Smith  v.  Ashley,  136,  241. 

Post  and  Tribune,  Detroit,  suit  of  Judge  Miner,  221. 

Poverty,  charge  of,  libellous,  150  ;  of  defendant,  evidence  not  ad- 
missible in  mitigation,  253. 

Prescott,  Marie,  v.  Tousey,  139,  252,  253. 

Press,  Philadelphia,  suit  of  Sylvester  N.  Stewart,  203. 

Press,  Daily,  Augusta,  Ga.,  McCarty  v.  Pugh,  262. 

Press,  Daily,  Portland,  suit  of  George  G.  Stacy,  187,  267. 

"  Press  and  the  Law,"  address  by  Judge  Emory  Speer,  121. 

Press,  its  tone  criticised,  28. 

Pressman's  liability,  53,  243. 

Previous  libels,  by  defendant  to  show  malice,  2G0;  by  plaintiff  in 
mitigation,  263. 

Previous  recovery  in  defence,  246. 

Printer  of  libel  may  be  sued,  52. 

Private  character  of  public  man,  publications  not  privileged,  209. 

Privileged  publications,  180-228  ;  malice  must  be  shown,  42  ;  vari- 
ous classes.  180;  limitations  and  exceptions,  87,  181-183; 
judicial  proceedings,  180;  ex  parte  hearings,  184;  arrests, 
187;  proceedings  before  grand  jury,  etc.,  189;  legislative  af- 
fairs, 82,  191  ;  public  meetings,  193,  224;  various  semi  public 
affairs,  195;  test  of  the  question  of  privilege,  196;  criticism 
of  works  of  art,  etc.,  19S;  how  malice  may  be  shown,  203; 
publications  for  protection  of  one's  own  interests,  204  ;  pub- 
lications by  commercial  agencies,  206;  courts  oppose  exten- 
sion of  privilege,  207  ;  political  libels,  208-228  ;  private  char- 
acter of  public  men,  publications  not  privileged,  209  ;  Court 
of  Star  Chamber,  209;  political  libels  in  last  century,  210; 
Alien  and  Sedition  Laws,  211  ;  publications  respecting  candi- 
dates for  election,  213  ;  candidates  for  appointment,  219;  pub- 
lic officer  ,  221  ;  privilege  pleaded  in  defence,  229. 

Proclamation,  bogus,  case  of  Joseph  Howard,  Jr.,  79. 

Profession,  language  affecting  one  in  his,  166. 

Professor  at  university,  what  language   concerning  is   privileged, 
196 


298  INDEX. 

Progress,  Bloomington,  Ind.,  McGinnis  v.  Gabe,  179. 

Prohibition  of  publication  of  court  proceedings,  102. 

Proof  of  truth  must  be  as  "  broad  as  the  charge,"  91,  232. 

Property,  language  which  impairs  value  of,  164. 

Proposed  changes  in  libel  laws,  30-37,  98,  122,  12S,  141,  194 
260,  n.,  275,  n. 

Proprietor,  liability  of,  134-136,53,93;  liability  in  punitive  dam- 
ages for  malice  of  employee,  45,  256,  265  ;  may  be  sued  without 
the  writer,  130;  no  redress  against  editor  or  writer,  57,  134; 
liability  for  publications  in  his  absence,  135  ;  ignorance  of  the 
fact  of  publication,  whether  defence,  249 ;  ignorance  that  in- 
dividual was  referred  to,  136,  241. 

Protection  of  one's  own  interests,  publications  privileged,  204. 

Provocation  for  libel  by  plaintiff,  when  defence,  23S ;  in  mitiga- 
tion, 261. 

Public  Advertiser,  London,  King  v.  Home,  83. 

Public  meetings,  whether  reports  privileged,  193,  224. 

Public  men.     See  privileged  publications. 

Public  officers,  publications  regarding,  when  privileged,  221. 

Publication,  54,  130-147;  evidence  of,  in  criminal  case,  93 ;  who 
liable  as  publishers,  130;  proprietor's  liability,  134;  the  libel 
published  wherever  circulated,  94,  136;  not  published  till  read 
by  some  third  person,  139;  news  agent's  liability,  139  ;  publi- 
cation by  partners,  141 ;  by  corporation,  etc.,  142;  the  writer's 
liability,  143;  two  publications  of  same  libel,  147  ;  each  sale 
a  fresh  publication,  244. 

Publick  Occurrences,  Boston,  first  American  newspaper,  9. 

Publisher.     See  proprietor  ;  see  also  publication. 

Punitive  damages,  when  recoverable,  255-260;  in  some  States  not 
recoverable,  276;  in  Minnesota,  227  ;  limited  in  Michigan,  277  ; 
recoverable  against  corporation,  142;  unsuccessful  attempt  to 
prove  truth,  44,  253;  wealth  of  defendant  in  evidence,  253; 
punitive  damages  wrong  in  principle,  274-278,  98  ;  lack  of 
limit  to,  277. 

Question,  imputation  in  form  of,  libellous,  170. 

Railroad  company,  words  concerning  officer  of,  privileged,  197. 
Railway  Register,  Shattuc  v.  McArthur,  174. 


INDEX. 


299 


Reade,  Charles,  v.  Sweetzer,  200. 
Reading  libel  to  another  involves  liability,  54. 
Receiver,  liability  of,  143. 
Reckless  publication,  enhances  damages,  266. 
Record,  Philadelphia,  Commonwealth  v.  Singerly,  208. 
Record,  Evening,  Boston,  suit  of  John  Henry  Kerrison,  172. 
Reform  in  libel  laws.     See  proposed  changes. 
Refusal,  by  reporter  to  disclose  sources  of  information,  123  ;  by 
publisher  to  disclose  name  of  author,  125;  to  publish  retrac- 
tion, whether  it  enhances  damages,  265. 
Regiment,  libel  on,  50,  70,  71. 
Register,  Albany,  Steele  v.  Southwick,  48  ;  Coleman  v.  Southwick, 

170. 
Register,  Daily,  Wheeling,  Sweeney  v.  Baker,  215,  267. 
Religious  association,  resolutions  adopted  by,  privileged,  J97. 
Repetition  of  libel.     See  republication. 
Report  of  court  proceedings.     See  court  reports. 
Reporter,  liability  of,  53;  refusal  to  disclose  sources  of  informa- 
tion, 123.     See  writer. 
Reprinting  libel,  gives  new  right  of  action,  246.     See  republication. 
Republican,  Martinsville,  Ind.,  Mytick  v.  Bain,  174. 
Republican,  St.  Louis,  Buckley  v.  Knapp,  253,  269. 
Republican,  Springfield,  Lothrop  v.  Adams,  141  ;  Fisk  v.  Bowles, 

250. 
Republican  Crisis,  N.  Y.,  Genet  v.  Mitchell,  174  ;  Thomas  v.  Cros- 

vvell,  175. 
Republican  Sentinel,  Milwaukee,  suit  of  Mike  Kraus,  179. 
Republican  Watch  Tower,  N.  Y.,  Tillotson  v.  Cheetham,  252. 
Republication  of  libel,  to  show  malice,  260;   liability  of  original 

publisher,  147,  246,  273. 
Reputation,  injury  to,  the  ground  of  libel  actions,  148,   272  ;    of 

plaintiff,  if  bad,  in  mitigation,  239,  251  ;  of  defendant,  if  bad, 

no  mitigation,  266. 
Resolutions  of  religious  association,  privileged,  197. 
Restraint  on  the  press,  need  of,  2S. 
Retraction,  no  defence,  67  ;    with  expression  of  satisfaction,  no 

release  of  right  of  action,  249,  264;  in  mitigation,  264;  refusal 

of,  to  enhance  damages,  260,  265. 
Rhode  Island,  penalty  for  criminal  libel,  96. 


300  INDEX. 

Ridicule,  publication  exposing  to,  libellous,  73,  150. 

Risk  Allah  Bey  v.  Whitehurst,  254. 

Rocky  Mountain  News,  Denver,  Martin  v.  Byers,  50,  119. 

Root  v.  King,  216. 

Round  Table,  N.  Y.,  Reade  v.  Sweetzer,  200. 

Rumor,  no  defence  that  libel  based  on,  237  ;  in  mitigation,  261. 

Ruskin,  John,  sued  for  libel,  201. 

Ryckman  v.  Delavan,  49. 

"  Salting  "  a  mine,  charge  of,  libellous,  177. 

Satirist  or  Monthly  Meteor,  Eng.,  Tabart  v.  Tipper,  19S. 

School,  criticism  of,  privileged,  203. 

Seditious  libels,  19,  74-84,  87,  211. 

Seduction,  charge  of,  libellous,  270. 

Semi-public  affairs,  what  comments  are  privileged,  195. 

Sentinel,  Vicksburg,  ex  parte  Walter  Hickey,  no. 

Sentinel,  Daily,  Raleigh,  the  case  of  Moore  et  al.,  117. 

Sentinel  and  Gazette,  Utica,  Beardsley  v.  Maynard,  263. 

Separate  right  of  action  for  every  copy  sold,  60,  13S,  244. 

Settlement  out  of  court,  not  composition  of  felony,  95. 

Several  liability  for  a  libel,  247. 

"  Shaving  purposes,"  not  libellous,  159. 

Sheridan  on  the  liberty  of  the  press,  13,  n. 

"  Sheriff,  in  the  hands  of,"  libellous,  265. 

"  Shyster,"  charge  of  being,  libellous,  161. 

"  Skunk,"  charge  of  being,  libellous,  125. 

Slander,  distinguished  from  libel,  39,  40,  148. 

Slander  of  title,  164,  202. 

Smallness  of  damages,  when  ground  for  new  trial,  267. 

Smith,  Gerrit,  v.  Chicago  Tribune,  196. 

Smuggling,  charge  of,  libellous,  232. 

Social  standing  of  plaintiff,  whether  evidence  admissible,  252. 

South  Carolina,  statute  of  limitations,  60. 

Special  damage,  defined,  156 ;  when  it  must  be  shown,  62,  272. 

Spectator,  N.  Y.,  Cooper  v.  Stone,  158. 

Spectator,  Saturday  Evening,  Minneapolis,  Wi'son  v    Dubois,  165. 

Speech,  libellous,  speaker  liable,  55. 

Speer,  Judge,  on  "  The  Press  and  the  Law,"  121. 

Spirit  of  the  West,  Ind.,  Johnson  v.  Stebbins,  14S,  237. 


INDEX.  301 

Standard,  Bridgeport,  James  L.  Arnott's  suit,  154. 

Standard,  London,  Usill  v.  Hales,  186. 

Star,  Evening,  Washington,  suit  of  W.  W.  Hicks,  268. 

Star  Republican,  Clayton,  Mo.,  State  v.  Crossman,  172. 

Star  Chamber,  Court  of,  punishment  of  political  libels,  209. 

State  governments,  libels  on,  indictable,  82. 

State  v.  Smily,  152. 

State  v.  Verry,  22. 

States,  New  Orleans,  Bigney  v.  Van  Benthuysen,  238. 

Statute,  publication  a  contempt  in  spite  of,  109. 

Statute  of  limitations,  60,  244 ;  charge  of  taking  advantage  of,  not 
libellous,  160. 

Story  told  by  plaintiff  of  himself,  libellous  to  publish,  171. 

Stubbs'  Weekly  Gazette,  Eng.,  StuSbs  v.  Marsh,  143. 

Subsequent  publications,  to  show  malice,  43,  257.  See  republica- 
tion. 

Substantial  damages,  recoverable  although  no  injury  shown,  250. 

Suit  against  two  or  more  for  same  libel,  56,  266. 

Sun,  Baltimore,  John  T.  Morris'  case,  123. 

Sun,  England,  Duke  of  Brunswick  v.  Harmer,  245. 

Sun,  Indianapolis,  suit  of  Albert  J.  Horrell,  268. 

Sun,  N.  Y.,  Giraud  v.  Beach,  49;  suit  of  Mary  H.  Shelby,  151  ;  on 
correction  of  published  errors,  264,  n. 

"  Swill  milk  "  business,  words  regarding,  not  actionable,  168. 

Swindling,  charge  of,  libellous,  40,  237,  251. 

Swine,  charge  of  being,  libellous,  173. 

Tampering  with  ballot-boxes,  charge  of,  libellous,  255. 
Telegraph,  Daily,  London,  Risk  Allah  Bey  v.  Whitehurst,  254. 
Telegraph,  Daily,  St.  John,    Silver  v.  Dominion  Telegraph  Co., 

55- 
Telegraph,  Daily,  Sheffield,  Eng.,  Harrison  v.  Tearce,  131. 
Telegraph  company,  liability  of,  55. 
Telegraphic  correspondent,  liability  of,  53. 
Tennessee,  statutes  cited,  89,  230. 
Test  of  question  of  privilege,  196. 
Texas,  statute  for  suppressing  libels,  28,  n. ;  seditious  libels,  82,  n.  ; 

publication  of  libel,  131,  n.;  statutes  cited,  96,  230. 
Theft,  charge  of,  libellous,  47,  155,  18S. 

14 


3°2 


INDEX. 


Third  person,  libel  must  be  read  by,  54,  139;  and  understood  by, 
149. 

7  hompson's  Bank  Note  and  Commercial  Reporter,  Shoe  and  Leather 
Bank  v.  Thompson,  51. 

Times,  Bethlehem,  Pa.,  Commonwealth  v.  Godshalk,  183. 

Tinies,  Chicago,  suppressed  for  seditious  sentiments,  81 ;  People 
v.  Storey,  118;  Clifford  v.  Cochrane,  147;  Early  v.  Storey, 
252,  263,  273  ;  Wallace  v.  Storey,  264. 

Times,  Columbia,  S.  C,  Woodburn  v.  Miller,  145. 

Times,  London,  Wason  v.  Walter,  22. 

Times,  Manistee,  Mich.,  Fowler  v.  Hoffman,  57. 

Times,  New  Orleans,  suit  of  L.  C.  Perret,  24,  131  ;  Terry  v.  Fel- 
lows, 191. 

Times,  N.  Y.,  George  Jones  and  his  libel  suits,  32,  n. ;  Mecabe  v. 
Jones,  142;  Caldwell  v.  Raymond,  157,  241;  Ackerman  v. 
Jones,  1S5  ;  Fisk  v.  Norvell  and  Raymond,  250 ;  Bergmann  v. 
Jones,  259. 

Times,  Ogdensburg,  Stilwell  v.  Barter,  232. 

Times,  Oshkosh,  Kimball  v.  Fernandez,  235. 

Times,  Philadelphia,  on  "  Frivolous  Libel  Suits,"  31  ;  Common- 
wealth v.  McClure,  92  ;  suit  of  Maximilian  A.  Dauphin,  245. 

Times,  Trenton,  Slate  v.  Mott,  176. 

Tit-Bits,  London,  Dolby's  case,  151. 

Tobacco  Journal,  N.  Y.,  Rosen  wald  v.  Hammerstein,  175. 

Town  councils,  reports  of  proceedings  privileged,  192. 

Town   Topics,  N.  Y.,  People  v.  Mann,  86. 

Trade,  language  affecting  one  in  his,  166. 

Transcript,  Moncton,  N.  B.,  J.  T.  Hawke's  case,  12  r. 

Transcript,  Sunday  Morning,  Providence,  State  v.  Spear,  177. 

Translation,  when  author  is  responsible  for,  146. 

Treasonable  sentiments,  libellous  to  credit  wrongfully,  170. 

Trentonian,  Weekly,  Insurance  Co.  v.  Perrine,  51. 

Tribune,  Chicago,  suit  of  Albert  H.  Walker,  161  ;  suit  of  J.  Ap- 
pleton  Wilson,  189 ;  suit  of  Gerrit  Smith,  196. 

Tribune,  Leaver,  Downing  v.  Brown,  233,  254. 

Tribune,  Minneapolis,  suit  of  Frank  D.  Larrabee,  161,  262. 

Tribune,  N.  Y.,  Littlejohn  v.  Greeley,  45,  215;  Horace  Greeley's 
contempt  case,  116;  Cooper  v.  Greeley,  158,  n.,  173;  Fi;-k  v. 
Greeley,  250. 


INDEX. 


3°3 


"  True  report  "  of  judicial  proceedings,  defined,  182. 

True  Sun,  England,  Hunt  v.  Algar,  133. 

Trussell  v.  Scarlett,  206. 

Truth,  in  defence,  230;  early  law  upon  the  subject,  17,  18,  n.,  21, 
22,  n.  ;  in  civil  actions  a  full  defence,  41,  231  ;  in  criminal 
cases,  21,87-91,  230;  "  the  greater  the  truth,  the  greater  the 
libel,''  87,  230 ;  evidence  of  truth  not  received  in  cases  of  se- 
ditious, blasphemous,  and  obscene  libels,  87  ;  proof  as  "  broad 
as  the  charge,"  232-235;  nature  of  evidence  of  truth,  237  ;  un- 
successful attempt  to  prove  truth,  44,  253  ;  partial  justification 
in  mitigation,  232,  253 ;  if  true,  immaterial  that  defendant  sup- 
posed the  charge  false,  262. 

Truth,  London,  Queen  v.  Labouchere,  69. 

Truth,  X.  V.,  People  v.  Isaacs,  162. 

liinxis  Valley  Herald,  Conn.,  Wynne?'.  Parsons,  154. 

Two  publications  of  same  libel,  division  of  liability,  132,  147.  See 
republication. 

Unchastity,  charge  of,  libellous,  264,  269. 

Union,  Chenango,  N.  Y.,  Bennett  v.  Smith,  232. 

Union,  Manchester,  Barnes  v.  Campbell,  44. 

Union  and  Advertiser,  Rochester,  suit  of  Ida  E.  Salisbury,  1S2. 

United  States  v.  Buell,  62. 

United  States  v.  Holmes,  103. 

United  States  v.  Marshall,  62. 

Unlawful  occupation,  libel  concerning,  168,  245. 

Unsuccessful  attempt  to  prove  truth,  effect  on  verdict,  44,  253. 

Utah,  penalty  for  criminal  libel,  96. 

Verdict,  general,  jury  may  find,  92 ;  largest  paid  in  America,  270. 

Vermont,  statutes  cited,  60,  S9,  230. 

Vertnont  Chronicle,  Shurtleff  v.  Stevens,  197. 

Vermont  Journal,  Windsor,  United  States  v.  Lyon,  211. 

Vindictive  damages,  274.     See  punitive  damages. 

Virginia,  statutes  cited,  128,  261. 

"  Vulgar,  ignorant,  and  scurrilous  journal,"  not  libellous,  165. 

Wall  Street  Daily  News,  N.  Y.,  People  v.  Keep,  64. 
Washington,  George,  libelled,  210. 


3°4 


INDEX. 


Washington  Territory,  statutes  cited,  6o,  96. 

Wasp,  Hudson,  N.  Y.,  Croswell  indicted  for  libelling  Jefferson, 

20,38,118. 
Wealth  of  defendant,  as  affecting  amount  of  damages,  252. 
Weed,  Thurlow,  v.  Foster,  173;   Weed  defendant,  15S,  n.,  177. 
West  Virginia,  statutes  cited,  128,  261. 
Western  Mercury,  Daily,  Eng.,  Bishop  v.  Latimer,  235. 
Whig,  Quincy,  111.,  Rearick  v.  Wilcox,  217,  266. 
Whig  and  Register,  Sunday,  Knoxville,  Baxter  v.  Saunders,  203, 

258. 
Whistler  v.  Ruskin,  201. 
Wisconsin,  statutes  cited,  44,  6o,  96. 
Wisconsin,  Evening,  Milwaukee,  Ludvvig  v.  Cramer,  131  ;  Noonan 

v.    Cramer,   174;    Bradley  v.  Cramer,    256,   265;    Eviston  v. 

Cramer,  256;  Cottrill  v.  Cramer,  267. 
World,  London,  prosecution  of  Edmund  Yates,  68. 
World,  N.  Y.,  suppressed  for  publishing  bogus  proclamation,  79  ; 

Kennedy  v.  Press  Pub.  Co.,  164. 
Writer   of   libel,    conclusive   presumption    against,   53 ;    evidence 

against,   143-145;  intent,  when  immateiial,  155. 
Writing  a  libel,  evidence  of  publication,  143. 
Wyoming,  penalty  for  criminal  libel,  96. 

Yates,  Edmund,  prosecuted  for  libel,  68. 

Zenger,  John  Peter,  tried  for  libel,  15. 


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